Citation Nr: 20043761 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 11-24 147 DATE: June 29, 2020 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected dysthymic disorder, is denied. REMANDED Entitlement to service connection for colorectal cancer is remanded. FINDING OF FACT OSA is not shown to be etiologically related to an in-service injury, event, or disease, or to a service-connected disability. CONCLUSION OF LAW The criteria for an award of service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Coast Guard from November 1970 to April 1989. These matters come to the Board of Veterans’ Appeals (Board) on appeal from October 2010 and February 2018 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). In his August 2011 substantive appeal of the RO’s denial of his claim for service connection for colorectal cancer, the Veteran indicated that he wanted to appear at a Board hearing. However, he later withdrew that request in August 2014. 38 C.F.R. § 20.704(e). Service connection for OSA, to include as secondary to service-connected dysthymic disorder This issue was previously before the Board in March 2020, when it was remanded for additional development. In its remand, the Board instructed the agency of original jurisdiction (AOJ) to afford the Veteran a new VA examination in connection with his claim. There has been at least substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his OSA was incurred in or caused by service. He also contends that the disability is secondary to his service-connected dysthymic disorder. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, the Board notes that an October 2014 sleep study confirms that the Veteran has a current diagnosis of OSA. The first element of service connection is therefore established. The question for the Board is whether the Veteran’s OSA is related to service or to his service-connected dysthymic disorder. In support of his claim, the Veteran submitted a lay statement from fellow service member, F. H., in August 2016. Mr. H. stated that he was stationed with the Veteran during service, that he had to wake him up for duty, and that he snored heavily. The Board also notes that the Veteran reported problems sleeping in an April 1987 service treatment record (STR). The Veteran was afforded a VA examination in connection with his claim in April 2020. The examiner offered negative nexus opinions as to direct and secondary service connection, aggravation, and as to whether obesity was a result of any service-connected disability. Regarding direct service connection, he noted that the Veteran was diagnosed with OSA in 2014, which was rated as mild, and that the diagnosis was made 25 years after the Veteran separated from service. He opined that it was highly unlikely that a long interval such as that would occur without a diagnosis, and that it was also less likely than not that it would have been diagnosed as mild over that time frame. The examiner also addressed Mr. H.’s lay statement that the Veteran snored in service but noted that there was no objective evidence of OSA in service, that there was no mention of apneic episodes or gasping, and that snoring has many causes. Regarding secondary service connection, the examiner reasoned that dysthymia and other psychiatric conditions do not cause OSA, and that by definition the disease is due to upper airways obstruction associated with apneic episodes. While he acknowledged that dysthymia and other psychological comorbidities might cause sleep disturbances, those would not be due to a central nervous system (CNS) pathway. He also stated that any medications taken for a psychiatric condition would also interact via a central pathway. The examiner further opined that there was no evidence of aggravation. He found that medical evidence was insufficient to support a determination of baseline severity of the Veteran’s OSA, and that to establish a baseline one would use the apnea hypopnea index, respiratory disturbance index, and CPAP settings. He noted that any change could be due to multiple factors, including the natural history of the disease, weight gain, etc. He also stated that medications and possible alcohol use associated with a psychiatric disorder would act through the CNS pathway and would not directly impact OSA itself. Finally, the examiner addressed the Veteran’s obesity, finding that obesity was multifactorial and that variables included caloric intake, expenditure, exercise or lack thereof, eating habits, genetics and metabolism, etc. He stated that psychological conditions can affect appetite, both favorably and unfavorably, and that there were no objective measures by which to determine the cause of the Veteran’s obesity. He opined that obesity itself does not cause OSA, and that it was therefore less likely than not that the Veteran’s obesity caused or aggravated his OSA. The Board finds the opinion of the April 2020 VA examiner highly probative and assigns it significant weight. The opinion was based on review of the Veteran’s record including his reports, the medical record, the lay statements of records, and his examination. His findings are consistent with the record and supported by a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board notes that there is no other medical evidence suggesting a link between the Veteran’s OSA and his service, and that the Veteran was not diagnosed with OSA until 2014, approximately 25 years after his separation from service. The April 1987 STR also indicates clearly that the Veteran’s sleep problems in service were attributed to his psychiatric condition, as he reported crying spells and worrying about his family at the same visit, and was diagnosed with dysthymic disorder at that time. There is no indication from the Veteran’s STRs that he had any problems with sleep in service due to any physical condition, such as OSA. Additionally, the Board notes that while the Veteran is competent to report symptoms he experiences first-hand, to include problems sleeping, a determination as to whether his OSA is related to service is a complex matter requiring medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Here, there is no evidence that the Veteran has any such expertise. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for colorectal cancer is remanded. The Veteran’s claim for service connection for colorectal cancer was previously before the Board in September 2017, February 2019, and March 2020. In September 2017, the Board remanded the claim for additional development. In February 2019, the Board denied the Veteran’s claim. The Veteran appealed the Board’s February 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through his then-attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication. In March 2020, the Board again remanded the claim for additional development. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there has been substantial compliance with the Board’s March 2020 remand directives. See Stegall, supra. The Veteran contends that his colorectal cancer was caused by service. Specifically, in a February 2014 document he stated that he was exposed to various chemicals in service and contended that those chemicals caused his colorectal cancer. He stated in a September 2012 document that he worked on a nuclear reactor during service and contended that radiation exposure caused his colorectal cancer. The Veteran’s fellow service member, Mr. H., provided a lay statement in October 2016 in which he stated that he served with the Veteran when other workers carried asbestos insulation from the engine room of his ship in unsealed plastic bags. The Board notes that the RO undertook development to determine whether the Veteran was exposed to radiation during service, and in February 2016 received a response from the U.S. Coast Guard that it did not have any health information for the Veteran regarding a radiation occupational health history. In its September 2017 remand, the Board instructed the RO to afford the Veteran a VA examination in connection with his claim. It instructed the examiner to offer opinions as to whether the Veteran had a current diagnosis of colorectal cancer, and if so, whether it had its onset in service or within one year of discharge, and whether it was caused or aggravated by service. The Board also asked that the examiner comment on the Veteran’s STRs, to include a notation of IBS in service, and to comment on the multiple lay statements in the file indicating possible exposure to toxins including trichloroethylene, zinc, mercury, lead, lubricating and fuel oils, and asbestos. The Veteran was afforded a VA examination in connection with his claim in January 2018. The examiner noted that the Veteran was diagnosed with colorectal cancer in 2005 and that he underwent surgery in 2006. The examiner offered a negative nexus opinion, stating that he knew of no association with colon cancer and the military, that there was no current definitive research linking colon cancer to asbestos or chemical exposure while in service, and there were also no studies linking IBS to the development of colon cancer. In its March 2020 remand, the Board noted that the January 2018 VA examiner did not address whether the Veteran’s colorectal cancer manifested within a year of separation from active duty, and not provide adequate rationale for his opinion regarding the Veteran’s various chemical exposures during service. The Veteran was afforded a new VA examination in May 2020. The examiner offered a negative nexus opinion, reasoning that the Veteran was diagnosed with the condition in 2006, which was 16 years after service. He noted that VA had colon cancer as a presumptive condition for radiation exposure, but that there was no objective evidence in the claims file to support that the Veteran had hazardous exposure in service and that reports of exposure were subjective only. He also noted that the condition was not diagnosed in service, and that objective evidence did not support a finding that activities and duties during service caused or aggravated the diagnosis of colorectal cancer. He cited to the October 2016 finding by the U.S. Coast Guard that the Veteran had no hazardous exposure history. The examiner also noted that the Veteran was treated for gastrointestinal symptoms in service in June 1986 and for gastroenteritis in June 1984 and February 1985. He stated that gastroenteritis was an acute and self-limiting condition, and that it did not cause colorectal cancer. He also noted that the Veteran was diagnosed with IBS in service in 1986 but found there was no chronic diagnosis noted in the claims file. The Board finds that the May 2020 examiner did not adequately address the various chemical and other exposures noted in the Board’s September 2017 and March 2020 remand directives. While the examiner cited to the U.S. Coast Guard’s October 2016 finding, the Board notes that this finding was limited to addressing radiation exposure during service and did not address any of the Veteran’s other alleged exposures. While the various lay statements regarding exposure in service are admittedly subjective in nature, the Board also notes that there is no evidence of record that casts doubt on the Veteran’s contentions that he was exposed to hazardous chemicals in service. In light of the fact that the examiner did not adequately address the Veteran’s various alleged exposures during service, the Board finds that an addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange to provide the record on appeal to an appropriate VA examiner for the purpose of obtaining an opinion as to the etiology of the Veteran’s colorectal cancer. After reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s colorectal cancer had its onset during active duty, within one year of active duty, or was otherwise caused or aggravated by service. In so doing, the examiner should specifically address the Veteran’s contention that he was exposed to trichloroethylene, zinc, mercury, lead, lubricating and fuel oils, and asbestos in service. For each exposure alleged, the examiner should provide an opinion as to whether it is at least as likely as not that that exposure caused or aggravated the Veteran’s colorectal cancer. For the limited purpose of offering an opinion, the examiner should accept as true that the Veteran was exposed to various chemicals during service, as alleged. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.