Citation Nr: 20021810 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 19-02 150 DATE: March 27, 2020 ORDER The claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected maxillary sinusitis and/or gastroesophageal reflux disease (GERD) with duodenal ulcer and irritable bowel syndrome (IBS) (gastrointestinal (GI) disability), is denied. FINDING OF FACT 1. There is no evidence of treatment for or diagnosis of obstructive sleep apnea during service, or for many years thereafter, and competent probative medical opinion of record establishes that the Veteran’s obstructive sleep apnea did not have its onset in, and is not otherwise medically related to, service. 2. The only competent medical opinions of record that address whether the Veteran’s service-connected maxillary sinusitis and/or GI disability caused or aggravated his obstructive sleep apnea weigh against any such relationship. CONCLUSION OF LAW The criteria for service connection for an obstructive sleep apnea disability, to include as secondary to service-connected maxillary sinusitis and/or GI disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1971 to December 1995. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2015 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for obstructive sleep apnea. The Veteran filed a notice of disagreement (NOD) in August 2015. A statement of the case (SOC) was issued in November 2018, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in December 2018. In August 2019, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further action, to include development of the evidence. After accomplishing further action, the AOJ continued to deny the claim (as reflected in a February 2020 supplemental SOC (SSOC)) and returned the matter to the Board. Service Connection At the outset, the Board is now satisfied that all notification and development actions needed to fairly adjudicate this claim have been accomplished. In this regard, in a pre-rating letter, VA notified the Veteran of the evidence and information necessary to substantiate his claim, as well as who was responsible for submitting what evidence. VA also has undertaken appropriate actions to assist the Veteran in the development of his claim. Pertinent medical evidence associated with the claims file primarily consists of service treatment records (STRs), VA and private treatment records, medical articles submitted by the Veteran, as well as April 2015 and December 2019 VA examination reports with medical opinions (the latter of which was obtained on remand). Although the Veteran has been afforded opportunities to submit or identify outstanding non-VA (private) records (to include pursuant to the remand), there is no identified evidence for which the Veteran has provided appropriate authorization to obtain other existing, relevant evidence outstanding, and neither the Veteran nor his former representative has alleged any error or omission in the assistance provided. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on the claim on appeal, at this juncture. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999), See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be established on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires competent evidence showing (1) the existence of a current disability, and (2) that the current disability either (a) was caused by or (b) is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record, and evaluation of its competency, credibility, and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Veteran’s service treatment records (STRs) document no complaints, findings, or diagnosis pertaining to any sleep disorder. Post service, VA treatment records reflect that the Veteran complained of being tired, with “thick mucus in his throat”. See May 2004 VA treatment note. In May 2014, he complained of snoring in combination with trouble breathing, which often made him feel like he was chocking. Upon his request, the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea in September 2014. In a June 2015 private treatment note, the Veteran’s physician expressed his belief that if the Veteran has chronic nasal congestion secondary to sinus disease, then it would influence the Veteran’s obstructive sleep apnea symptoms. On VA sleep apnea examination in April 2015, the Veteran reported that he had loud snoring in the military that would wake up other GI's, forcing him to sleep in a separate room. He also reported daytime sleepiness since service. The April 2015 VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was due to or a result of his maxillary sinusitis. In reporting the Veteran’s sleep complaints during service, the VA examiner clarified that the sleep apnea is caused by obstruction of the airway most often by the soft palate and pharyngeal soft tissues. He explained that sinuses are not part of the airway but are chambers lateral to the airway, so infection or inflammation of the sinuses would not cause sleep apnea. The April 2015 VA examiner also opined that the Veteran’s obstructive sleep apnea was not aggravated by his maxillary sinusitis. Based on the Veteran’s history and medical records, the examiner found that the Veteran’s maxillary sinusitis had resolved, and, thus, could not aggravate his sleep apnea. Subsequently, in August 2019, the Board remanded the claim for an addendum medical opinion to address secondary service connection, The Board directed the opinion provider to consider the Veteran’s ongoing treatment for chronic sinusitis, and to comment on recently submitted medical articles that allegedly support a medical relationship between the Veteran’s sleep apnea and service-connected GERD. Pursuant to the Board’s remand, the AOJ obtained an addendum opinion. In December 2019, another VA clinician opined that it is less likely than not that the Veteran’s sleep apnea was caused or aggravated by his maxillary sinusitis. In rendering her opinion, the VA examiner explained that obstructive sleep apnea is an anatomical condition in which the structures of the upper airway relax during sleep, resulting in temporary total occlusion of the airway. She further stated that while sinusitis may cause occlusion of the nasopharynx, which may lead to snoring, it does not result in or aggravate occlusion of the entire oropharynx. The December 2019 opinion provider also indicated that the Veteran’s medical articles are not credible medical evidence that supports a causal link between GI disability and the anatomical condition of obstructive sleep apnea. She further opined that it is less likely than not that the Veteran’s obstructive sleep apnea is aggravated by his GI disability because there is no human pathophysiology to support a mechanism for aggravation. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for obstructive sleep apnea on either a direct or secondary basis is not warranted. First addressing the relationship between sleep apnea and service, as noted above, the Veteran’s in-service medical records, to include his separation examination report, are unremarkable as to any complaint, finding, or diagnosis pertaining to a sleep disorder. Also, following service, there is no evidence of treatment for sleep problems until 2004, and the first documented clinical evidence of obstructive sleep apnea was in 2014, more than nineteen years after the Veteran’s separation from active service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. (1992). Significantly, moreover, the only competent, probative opinions to address the medical relationship, if any, between the obstructive sleep apnea diagnosed years after service and either the Veteran’s service or his service-connected maxillary sinusitis and/ir GI disability weigh against the claim. The VA physicians who provided the April 2015 and December 2019 opinions explicitly rendered conclusions that weigh against a finding of service connection on direct and/or secondary basis/es. Each opinion was based on consideration of the Veteran’s documented history and assertions, as well as accepted medical principles, and is supported by clearly stated rationale. As such, the Board accepts these opinions as probative of the medical nexus questions, See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Notably, ton the question of secondary service connection, the Board finds the December 2019 opinion particularly probative, inasmuch as that opinion also reflects specific consideration and discussion of more recently received evidence, to include that submitted by the Veteran. Significantly, there is no persuasive, contrary medical opinion—i.e. one that, in fact, establishes a medical nexus between the Veteran’s current sleep apnea and either service or service-connected disability. While the Veteran’s private expressed his belief that, if it involved chronic nasal congestion, the Veteran’s chronic nasal congestion or sinus disease would influence his obstructive sleep apnea symptoms, such comment is minimal, if any, probative value because it is conditional, tentative, and not sufficiently definitive. . See Hood v. Shinseki, 23 Vet. App. 295, 296 (2009); Perman v. Brown, 5 Vet. App. 237, 241 (1993) (speculative or equivocal medical opinions may be considered "non-evidence" and have no probative value); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). The physician also provided no explanaton for the meaning of the term “influence”, and the opinion expressed is not supported by stated rationale. Furthermore, although the Veteran has submitted several medical articles which allegedly suggest a relationship between sleep apnea and GERD, as noted by the December 2019 VA opinion provider, these articles do not actually indicate that GERD can lead to obstructive sleep apnea. [Parenthetically, the Board notes that, even if the articles suggested such a relationship, such would not serve to establish a medical nexus in this case, inasmuch as the relationship suggested would not be specific to the Veteran, and the articles were not submitted with a supporting medical statement to help establish at least plausible causality with respect to the Veteran. See, e.g., Wallin v. West, 11 Vet. App. 509 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998).] (Continued on the next page) Finally, to whatever extent that the Veteran asserts a a medical nexus between his leep apnea, and either service or service-connected maxillary sinusitis and/or GI disability, the Board finds that such assertions do not provide persuasive support for the claim. Matters of medical etiology of disabilities generally are within the province of trained medical professionals. See Jones v. Brown, 7. Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some limited medical issues (see Kahana v. Shinseki, 24. Vet. App. 428, 435 (2011)), the etiology of the obstructive sleep apnea here at issue is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377, n.4 (providing that lay persons are competent to identify a broken leg, but not to diagnose cancer). As the Veteran is not shown to be other than a layperson without appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the complex medical matter upon with this claim turns. Id. Thus, in connection with this claim, lay assertions as to the etiology of the disability for which service connection is sought have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for obstructive sleep apnea disability, to include as secondary to service-connected maxillary sinusitis and/or GI disability, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim on both direct and secondary bases, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.