Citation Nr: 1828946 Decision Date: 05/18/18 Archive Date: 05/23/18 DOCKET NO. 10-24 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to status-post uvulopalatopharyngoplasty (UPPP). 2. Entitlement to service connection for rhinitis, to include as secondary to UPPP. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from January 1983 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to service connection for the Veteran's claims. The Veteran filed his notice of disagreement in January 2009. The Veteran timely filed his substantive appeal in May 2010. This case was previously before the Board in January 2017, where the issues on appeal were remanded for further evidentiary development. The Veteran's other claims were adjudicated. FINDINGS OF FACTS 1. The preponderance of the evidence is against a finding that the Veteran's OSA is related to active duty service, or caused or aggravated by UPPP. 2. The preponderance of the evidence is against a finding that the Veteran's rhinitis is related to active duty service, or caused or aggravated by UPPP. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for entitlement to service connection for rhinitis are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. See the July 2011 VCAA letter. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Service Connection Claims The Veteran is seeking service connection for OSA and rhinitis based on his active duty service, or secondary to his service connected status post UPPP. See August 2010 Statements in Support. Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Further, service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 layperson. 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). Lay evidence may be competent evidence to establish incurrence of a disability in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). As an initial matter, the Board notes that the Veteran's STRs are unavailable. In cases such as these, the Board has a heightened obligation to consider carefully the benefit of the doubt rule. O'Hare, 1 Vet. App. at 367. Obstructive sleep apnea Private treatment records from March 1996 reveal that the Veteran has been diagnosed with severe obstructive sleep apnea syndrome. The first element for both direct and secondary service connection has been met. Additionally, the Veteran is service-connected for UPPP, meeting the second element of secondary service connection. The Veteran's lay statements that he has dealt with the same symptomology since his tonsillectomy in service (See December 2015 C&P Examination and August 2010 Statement in Support) are also of record. The pertinent question for the Board is whether there is competent evidence establishing a nexus between the Veteran's current sleep apnea and his in-service condition, and/or whether there is competent evidence of a nexus between the service connected UPPP and the sleep apnea. At the time of the September 2014 examination, the Veteran's sleep apnea was confirmed. On VA examination in December 2015, the Veteran reported that, during military service, he developed recurrent tonsillitis that prompted a tonsillectomy with UPPP in 1985. After leaving service in 1986, he reported that he was snoring, chocking at night and had a lot of postnasal discharge. He was treated symptomatically, and prescribed decongestants, nose spray, and humidifier. In 1996, he was diagnosed with OSA. The examination revealed that the Veteran's OSA resulted in persistent daytime hypersomnolence. At the conclusion of the examination, the examiner opined that the Veteran's current sleep apnea was less likely than not incurred in or caused by service. The examiner reasoned that there were no STRs to assess an in-service diagnosis of OSA or confirm the procedures and dates reported by the Veteran. The first evidence of a diagnosis of OSA was on a sleep study done in March 1996, ten years after separation from military service and with no evidence of medical care until then, thus not supporting a nexus. The examiner added that the Veteran reported and records supported his previous UPPP during service, however the indication for surgery was noted to be for "severely enlarged tonsils" and not for sleep apnea. Additionally, in a note from May 1999, the physician noted some scarring of the posterior oropharynx, however, there was not any comment on its role in the Veteran's current OSA. These findings were not mentioned at the time of the septoplasty and turbinectomy in 1996. Review of the evidence based medical literature shows that obstructive sleep apnea is a common sleep disorder characterized by collapse of the pharyngeal airway during sleep and has multiple risk factors including obesity (the Veteran had gained 60lbs in a few years), nasal obstruction, and abusing tobacco and alcohol on a regular basis (note dated March 5, 1996). As such, the condition claimed was less likely than not incurred in or caused by the claimed in-service UPPP. In regards to whether the Veteran's claim that his current disability was caused or aggravated by his UPPP, the same VA examiner provided an opinion in April 2017. In that opinion, the examiner opined that the Veteran's current OSA is less likely than not proximately caused by or aggravated by the Veteran's service-connected UPPP. The examiner stated that she received input from ENT (ear, nose, and throat) specialists and reviewed medical literature regarding the surgical procedure in support of her opinion. She reasoned that the Veteran had severe tonsillar hypertrophy and recurrent tonsillitis that prompted a tonsillectomy and UPPP in 1985 during service. Recurrent acute pharyngitis and chronic tonsillitis are the most common reasons for tonsillectomy in adults. The Veteran separated from the service in 1986, but had severe nasal obstruction that prompted septoplasty and turbinectomy in 1996. There is no continuing medical care in the ten years following his surgery in service until 1996 when he resumed care. The Veteran contends that the UPPP he had during service, caused his sleep apnea, which was diagnosed in 1996. The examiner noted that the Veteran was morbidly obese at the time of the OSA diagnosis, with a BMI of 43.74kg/m2. Obstructive sleep apnea is a disorder characterized by apneas and hypopneas due to repetitive collapse of the upper airway during sleep. There are several risk factors for this condition, including obesity and alcohol abuse as were documented in the Veteran's records. In fact, an accepted treatment for OSA is UPPP to remove soft tissue obstruction and tighten the flabby tissues in the throat and palate, expanding air passage. The examiner added that medical literature did not support a causal relationship between UPPP procedure and development of OSA. Therefore, the condition claimed is less likely than not proximately due to or the result of the Veteran's service-connected condition and his sleep apnea is not aggravated by the scarring from the UPPP. In an October 2017 follow-up medical opinion, the examiner maintained her opinion that the Veteran's condition is less likely than not proximately caused by or aggravated by his service-connected UPPP. The examiner was asked to consider Dr. A.M.C.'s May 1999 observation that there still "appeared to be compromise of the air space," that there was "scarring and apparent compromise of the posterior oropharynx," that "the palate seemed relatively fixed," and that there was "perhaps adequate airway behind [the relatively fixed palate]" but that he "doubt[ed] it." The examiner commented that OSA is a disorder that is characterized by obstructive apneas and hypopneas caused by repetitive collapse of the upper airway during sleep. The major risk factors are obesity, male gender, and advanced age as well as alcohol abuse. The Veteran was diagnosed with OSA on March 1996, ten years after separation, in the context of morbid obesity (BMI 43.74, up to 52 in 2012) and overuse of alcohol. The Veteran had excellent results using a CPAP device. In 1985, during service he had significantly, severely enlarged and inflamed tonsils, with recurrent acute infections. The Veteran required bilateral tonsillectomy and uvulectomy then. There was no diagnosis of OSA during service or within a year following separation. On April 1996, ten years after separation, he had septoplasty and cryo-turbinectomy due to severe nasal obstruction. There is no medical care nexus during those ten years. This Veteran contends that the UPPP during service caused his OSA. Uvulopalatopharyngoplasty (UPPP) is the most common surgical procedure to treat OSA. UPPP is a surgical reconstructive procedure that involves reducing, tightening, and/or repositioning the soft palate and related oropharyngeal structures with the goal of improving the airway while asleep. UPPP often includes reduction, removal, or reconfiguration of the uvula. The redundant oropharyngeal tissue is removed and the scarring resulting from the surgery creates a firm, stable, not collapsible airway. This Veteran's indication for a UPPP was for tonsillar enlargement and a large uvula. The observation on May 1999 by Dr. A.C., of a compromised airway was never further evaluated and there was no indication that the Veteran required prompt management for "a compromised airway." Symptoms of such compromise would have been obvious and standard of care would have prompted referral for management. It is also to be noted that Dr. A.C. did not give a cause for his observed finding, and scarring alone is expected after any surgery. Dr. A.C. also noted on a later visit in May 2004, that the Veteran had a narrow airway and a big tongue as well as increased intraoral fat, all factors in his OSA. Recommendations were made for the use of a CPAP, weight loss, smoking and drinking cessation. The Veteran submitted evidence from the internet that supports the choice of the UPPP to treat OSA. It described the early post-operative complications of the procedure, like narrowing of the airway in the nose and throat due to post op edema, transient phenomenon. The examiner contended that on examination in December 2015, there were no objective findings representing airway compromise, and the exam was consistent with past UPPP. The examiner concluded that, after weighing all the evidence, the Veteran's OSA developed in conjunction with morbid obesity, (he had gained 60lbs after retiring, per records) and body habitus, and not secondary to the UPPP done in service for unrelated conditions. Moreover, medical literature was silent on causal relationship between UPPP procedure and development of OSA, and a causative relationship was not found. Additionally, there are no articles in the literature showing later development of OSA after UPPP. The examiner also listed the various medical literature referenced to support her opinion. See October 2017 C&P Medical Opinion The Board finds the VA examiner's medical opinion to be competent, credible, and highly probative on the issue at hand. The examiner reviewed all the available evidence and took into consideration the Veteran's lay statement. The examiner provided an opinion based on medical principles, consulted ENT specialist and medical literature to support her rationale. Moreover, there is no evidence of record that serves to controvert the examiner's opinion. Therefore, as the preponderance of the evidence is against the Veteran's claim for service connection, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Alemany v. Brown, 9 Vet. App. 518 (1996). Rhinitis In regards to the Veteran's claim for service connection for rhinitis, the Veteran received an examination in September 2014. The Veteran reported that he had a UPPP during service. It is noted that the Veteran has a diagnosis of allergic rhinitis, currently on no prescribed medications for the conditions. The examiner opined that the Veteran's rhinitis was less likely than not incurred or caused by service. The examiner reasoned that based on the examination and evidence of record, the Veteran was diagnosed with allergic rhinitis in 1996, ten years after service, without any medical evidence that he diagnosed or treated for rhinitis during service or immediately after discharge. During a December 2015 examination, the Veteran reported that he was diagnosed with sinusitis during his military service. He reported that he had enlarged tonsils and frequent episodes on nasal obstruction that prompted a tonsillectomy and UPPP in 1985. There was no documentation on date and place it was performed. On April 1996, he underwent a septoplasty for deviated nasal septum and cryosurgery for hypertrophic inferior turbinates. On July 1998, he received a diagnosis of allergic rhinitis and was prescribed Singulair and Clarinex. On November 2005, he was seen for Eustachian tube dysfunction and on April 2006 for acute sinusitis. Currently, he has allergic rhinitis symptoms and self-medicates as needed with OTC antihistamines. The examination revealed the Veteran was overweight, absent tonsils and uvula, no abnormal scarring, enlarged and erythematous nasal turbinates. In regards to whether the Veteran's rhinitis is secondary to his UPPP, in an April 2017 opinion, the examiner opined that it is less likely than not proximately due to or aggravated by the Veteran's UPPP. The examiner reasoned that the Veteran had septoplasty and turbinectomy due to severe nasal obstruction in 1996, but a UPPP procedure does not affect the nasal cavity therefore the rhinitis noted on exam is not secondary to his UPPP. The Board finds the VA examiner's medical opinion to be competent, credible, and highly probative on the issue at hand. The examiner reviewed all the available evidence and took into consideration the Veteran's lay statement. The examiner provided an opinion based on medical principles, consulted ENT specialist and medical literature to support her rationale. Moreover, there is no evidence of record that serves to controvert the examiner's opinion. Therefore, as the preponderance of the evidence is against the Veteran's claim for service connection, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for rhinitis is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs