Citation Nr: 1807294 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 12-02 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to other service-connected disabilities or the treatment for other service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Army from June 1984 to August 1993, including in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2014. A transcript of the hearing has been associated with the Veteran's claims file. The Board previously considered and remanded this claim in April 2015 in order to obtain a medical examination and opinion. The Veteran attended a medical examination pursuant to the Board's remand directives in May 2015, and an addendum opinion was secured with respect to this claim in November 2015. Accordingly, the Board is satisfied that there has been substantial compliance with its remand directives and the claim has been properly returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In its April 2015 decision, the Board also remanded the issues of entitlement to service connection for a skin disorder, acid reflux with abdominal pain, and headaches. VA granted service connection for these disabilities in a May 2015 rating decision. That decision represents a full grant of benefits sought on appeal with respect to those claims and they are no longer before the Board. FINDINGS OF FACT 1. The Veteran's OSA did not arise in service and is not otherwise etiologically related to service. 2. The Veteran's OSA is not due to or a result of any service-connected disability, to include treatment for any service-connected disability. 3. The Veteran's OSA has not been aggravated by any service-connected disability, to include treatment for any service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Legal Standard Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a secondary basis when the claimed disability is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). A finding of secondary service connection requires competent evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has also reported service in the Persian Gulf during the Persian Gulf War, and has suggested that his claimed disorder may be related to environmental exposures during such service. His service records confirm that he was present in the Southwest Asia theater of operations during the Persian Gulf War, consistent with the provisions of 38 C.F.R. § 3.317(e)(1) (2017). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). II. Analysis The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Here, the Board has no doubt that the Veteran has a current disability of obstructive sleep apnea, as evidenced by the results of sleep studies performed in December 2005 and June 2010. At the Veteran's June 2010 VA medical examination, he indicated that he had difficulty sleeping and had symptoms of sleep problems since his service in Desert Storm. He explained at that time that when he fell asleep he snored loudly, stopped breathing, and caught himself. The Veteran also testified regarding the history of sleep apnea symptoms at the December 2014 videoconference hearing. There, he indicated that he had not had any problems with sleep apnea before service and the Veteran testified that his wife did not complain about snoring or the Veteran having difficulty or stopping breathing before he served on active duty. After he returned from his deployment in Southwest Asia, the Veteran indicated that his sleep was interrupted and that his wife would nudge him when he fell asleep due to loud snoring and a tendency for him to stop breathing. The Veteran testified that his wife noticed these symptoms immediately after he returned from his deployment. The Board is sympathetic to the Veteran's sleep difficulties and apnea-related symptoms. The Veteran is also competent to report his former wife's statements regarding the observable symptoms of snoring and difficulty breathing. However, the record does not contain any evidence that the Veteran or his former wife have the knowledge, experience, or education to provide a competent opinion on the medically complex question of whether those symptoms satisfied the diagnostic criteria for sleep apnea or to provide a competent opinion on the complex issue of the etiology of this disability. As suggested above, the Veteran was afforded a June 2010 VA medical examination to determine the nature and etiology of the Veteran's sleep apnea. The clinician who evaluated the Veteran at that time ultimately opined that the Veteran's sleep apnea was not caused by or a result of inability to sleep and snoring while on active duty. In support of this opinion, the examiner indicated that the claims file contained no documentation of inability to sleep or loud snoring and that sleep apnea generally did not cause conscious awakenings or inability to sleep, but rather caused disrupted breathing patterns during sleep that were noted by sleeping partners. This examiner also indicated that snoring is a common finding with medical conditions other than sleep apnea that is present in the healthy general population and does not signify sleep apnea if the full clinical syndrome is not present. The Board remanded this appeal in April 2015 to get further information regarding the etiology of the Veteran's sleep disorder. As explained above, the Veteran attended a May 2015 VA medical examination pursuant to the Board's remand directives. The Veteran again indicated that his wife had told him he would stop breathing at times and he stated that he was not sleeping at night. The Veteran indicated that he had been prescribed a CPAP machine, but reported that it was too cumbersome to wear. After examining the Veteran and reviewing the claims file, the VA clinician opined that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had not been diagnosed with OSA until December 2005, at which point the condition was mild to moderate. Although she stated that it was not possible to know with certainty, this physician indicated that the disability had likely developed only one to three years before that diagnosis. She also noted that OSA is a known condition of a known etiology related to laxity in the pharyngeal tissues, with obesity and pain medication identified as factors for its development. In support of her opinion, this VA examiner indicated that nothing in the Veteran's service treatment records suggested any sleep apnea syndromes and that OSA is not secondary to environmental exposures, to include in Southwest Asia. She ultimately indicated that it was most likely that the Veteran's OSA developed several years after his service in the military and was related to sleeping position, pain medication use, and weight gain or lifestyle factors. As the Board's April 2015 decision granted service connection for several additional disabilities, VA obtained a clarifying opinion from the examiner who completed the May 2015 medical examination to determine whether the Veteran's OSA was due to or aggravated by these newly service-connected disabilities or the treatment the Veteran received for those conditions. In response to VA's request, that physician provided an extremely detailed addendum opinion in November 2015. In turn, the examiner explained that it was less likely than not that the Veteran's gastroesophageal reflux disease and gastritis, posttraumatic stress disorder, migraines, tinea unguium, and undiagnosed heart condition caused or aggravated the Veteran's OSA. She explained these service-connected disabilities did not have an effect on the laxity of the Veteran's pharyngeal tissues, which the examiner explained was the cause of OSA, and that the medications the Veteran receives for these service-connected disabilities also has no effect on the Veteran's OSA. The examiner also opined that the Veteran's OSA was less likely than not secondary to or aggravated by his bilateral upper extremity radiculopathy and degenerative disc disease in his cervical and thoracic spine. Again, the physician indicated that these orthopedic and neurologic conditions have no anatomic relationship to the laxity in the pharyngeal tissues that causes the Veteran's OSA. The examiner also clarified the role of the Veteran's pain medication and its effects on the Veteran's OSA. Of particular relevance here, the examiner explained that the Veteran was given nonsteroidal anti-inflammatory drugs (NSAIDs) from a neurological treatment provider and Lortab by his primary care physician for his pain conditions from roughly 2009 to 2015, at which point his prescription was changed to diclofenac (an NSAID) and his narcotics were significantly reduced. Despite the reduction in the Veteran's narcotic medication, the examiner indicated that the Veteran continued to have OSA. This VA physician also stated that the Veteran's medical notes showed no medications or NSAIDs being used to treat the Veteran's pain from 2005 through 2009 and she explained that, if the Veteran's OSA was caused or aggravated by his narcotic pain medications solely, then the Veteran's OSA should have resolved once those medications were reduced. Notably, she emphasized that the Veteran's OSA had not resolved. This examiner also explained that the Veteran has also met the diagnostic criteria for obesity and that treatment notes report the Veteran to having gained weight and being treated by a weight-loss doctor. She indicated that weight gain was the most important risk factor for development of OSA and that the Veteran had gained a significant amount of weight since the initial 2005 sleep study, with a total estimated weight gain of roughly 40 pounds. Likewise, the examiner indicated that the Veteran's treatment notes suggest that he does not where his CPAP machine and that there was ultimately nothing to suggest the cause of the Veteran's OSA was his medication. As the Veteran never wore his CPAP mask or had his smart card read, she indicated that it was ultimately impossible to determine whether the OSA had worsened, gotten better, or stayed the same. Despite the lack of data, this VA examiner indicated that the Veteran was on reduced amounts of narcotics since 2015 and that the claims file does not contain any reports of the Veteran's OSA to have worsened or improved in any significant way since his diagnosis. For these reasons, the examiner opined that the Veteran's weight over time was the most important risk factor for the Veteran's development of and continuation of his OSA diagnosis and that the Veteran's medication for his radiculopathy and degenerative disc disease did not cause or aggravate the Veteran's OSA. Viewed as a whole, the Board finds that this examiner's opinion, taken with the clarifying November 2015 addendum, is entitled to the most probative weight. It is given by a medical professional who had the opportunity to personally evaluate the Veteran and review the Veteran's claims file. She also provided a detailed explanation of the anatomical causes of the Veteran's OSA and has extensive medical training and experience as a physician. In contrast to the statements of the Veteran, this education and experience allows her to provide a competent opinion regarding the question of the cause and onset of the Veteran's OSA and the interplay between that sleep disorder and the Veteran's service-connected disabilities and the treatment he receives for those disabilities. This opinion is also persuasive and logical and clearly explains the steps the physician took to arrive at her ultimate conclusion that the Veteran's OSA is not caused or aggravated by the Veteran's service-connected disabilities or their treatment, that it was not caused by active duty service, that it first manifested many years after service, and that it is a diagnosis of known etiology that is not related to any environmental exposure, to include exposure to any substance or environment in Southwest Asia. Accordingly, the Board finds that this opinion and the clarifying addendum statement are significantly probative in this case. As indicated above, the Veteran is competent to describe his wife's statements regarding his sleeping habits and breathing difficulties immediately after service as well as his difficulties sleeping since service. However, given the clarifying and competent statements of the VA medical examiner in this case, the Board does not find that these statements are sufficient to establish that the Veteran's OSA is etiologically related to service, the Veteran's service-connected disabilities, or the medication he receives for those disabilities. As the preponderance of evidence is against the Veteran's claim for service connection, the doctrine of the benefit of the doubt is not for application and the Veteran's claim must be denied. III. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Here, the Veteran was provided adequate notice in correspondence from February 2010. A review of the claims file also indicates that all relevant service personnel and treatment records and VA treatment records have been associated with the Veteran's claims file. As noted above, the Board previously remanded these matters in April 2015 to obtain a medical examination and opinion regarding the etiology of the Veteran's OSA. A medical examination and addendum opinion were obtained in May and November of 2015, respectively. Taken together, these reports adequately explain the relevant medical facts and provide sufficient detail to adjudicate the Veteran's claim. The examiner's opinion was also given after an extensive record review and personal evaluation of the Veteran. Accordingly, the Board is satisfied that VA has satisfied its duty to assist the Veteran in the development of his claim. ORDER Service connection for obstructive sleep apnea is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs