Citation Nr: 21000202 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 11-21 045A DATE: January 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity, is denied. Entitlement to service connection for hypertension, claimed as due to in-service exposure to an herbicide agent, or in the alternative, as secondary to a service-connected disability, to include resulting obesity, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s obstructive sleep apnea did not have its onset during service and is not otherwise related to service. 2. The preponderance of the evidence shows that the Veteran’s obesity did not result from his service-connected PTSD. 3. The preponderance of the evidence shows that the Veteran’s obstructive sleep apnea is not proximately related to his service-connected PTSD. 4. The preponderance of the evidence shows that the Veteran’s hypertension did not result from his active service, to include as a result of in-service exposure to an herbicide agent. 5. The preponderance of the evidence shows that the Veteran’s obesity did not result from his service-connected PTSD. 6. The preponderance of the evidence shows that the Veteran’s hypertension is not proximately related to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hypertension, claimed as due to in-service exposure to an herbicide agent, or in the alternative, as secondary to a service-connected disability, to include resulting obesity, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1962 to March 1964, to include in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, the Agency of Original Jurisdiction (AOJ). The Veteran testified during a travel board hearing before the undersigned Veterans Law Judge in May 2014. A transcript of the hearing has been associated with the Veteran's claims file. These issues were previously before the Board in July 2014, October 2016, January 2018, and December 2019, at which time the Board remanded them for further development. These issues were again before the Board in September 2020, at which time they were remanded for further development. The Board's remand directives and the subsequent actions by the AOJ will be discussed below. The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence submitted by the appellant or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board has not overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). Service Connection In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 1. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity The Veteran has claimed that his obstructive sleep apnea is caused by or aggravated by his service-connected PTSD, to include resulting obesity. The Board will address both direct service connection and secondary service connection. The Veteran’s service treatment records are negative for treatment of or diagnosis of obstructive sleep apnea. The Veteran was diagnosed with obstructive sleep apnea in February 2014 pursuant to a sleep study. In October 2016, the Board remanded the Veteran’s claims for VA examinations, and also found that the Veteran had served in the Republic of Vietnam, instructing the AOJ to adjudicate the Veteran’s claims in accordance with that finding. A February 2017 examiner noted the Veteran’s February 2014 diagnosis of obstructive sleep apnea pursuant to a sleep study. The examiner noted that the Veteran’s PTSD interfered with his sleep and that the Veteran’s symptoms of sleep apnea included snoring and nocturnal gasping, which improved with CPAP. The Veteran also was prescribed medication for his sleep apnea. The examiner found it was less likely than not that the Veteran’s obstructive sleep apnea is related to his PTSD. The examiner reasoned that obstructive sleep apnea is a physical condition distinct from PTSD, a mental disorder. Additionally, OSA is caused by a structural abnormality in the upper airway which causes obstruction. The Veteran's symptoms were documented in 2013 and he denied any similar symptoms while active duty. OSA is also related to morbid obesity and his symptoms began after his weight increased (225lbs in 2009 to 270lbs). In January 2018, the Board remanded the Veteran’s claim for an addendum opinion addressing medical literature that was submitted supporting a link between PTSD and sleep apnea. A February 2019 VA examiner reviewed the evidence and opined that the Veteran’s sleep apnea is less likely than not related to service. The examiner found that the medical literature did not support a “concrete link” between PTSD and sleep apnea. In December 2019, the Board remanded for an addendum opinion, finding in part that the wording of the February 2019 examiner’s opinion suggested that he imposed a higher standard of causation that “at least as likely as not.” The Veteran was afforded a VA examination in February 2020. The examiner found it is less likely than not that the Veteran’s sleep apnea had its onset during service or is otherwise related to service. The examiner reviewed the Veteran’s history, claims file, treatment records, and medical textbooks and based his opinion on the following rationale. The Veteran was diagnosed with obstructive sleep apnea in 2014, many years after leaving active service. He described sleep apnea etiology “as per standard textbook:” "Repetitive collapse of the upper airway during sleep due to anatomical abnormality of nasopharynx is the defining feature of obstructive sleep apnea (OSA), a disorder that is characterized by obstructive apneas and hypopneas". The examiner noted the absence of documented evidence of diagnostic sleep study required for definite diagnosis of sleep apnea during service or immediately after leaving service. As to secondary service connection, the examiner opined that the Veteran’s sleep apnea is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that obstructive sleep apnea is due to an anatomically reduced upper airway size due to excess surrounding soft tissue or a highly compliant airway and PTSD is not mentioned as one of the etiology of sleep apnea in the literature provided in support of the Veteran’s claim. The examiner stated that the literature cited in the March 2016 brief is a hypothesis presented by a researcher concerning a study that noted a higher prevalence of psychiatric co-morbid with sleep disorder among veterans and that those veterans who have sleep problems should be evaluated for a sleep apnea study; it did not state that PTSD causes secondary sleep apnea. In September 2020, the Board remanded for an addendum opinion addressing whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's service-connected disabilities and/or the medications prescribed for symptom management resulted in obesity that caused or aggravated the Veteran's sleep apnea and/or hypertension. While the United States Court of Appeals for Veterans Claims held in Marcelino v. Shulkin, 6 Vet. App. Jan. 23, 2018, that “there is currently no provision in the rating schedule to compensate for obesity,” VA's Office of General Counsel (OGC) issued an opinion that a claim for secondary service connection may be based on obesity as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. This "intermediate step" under 38 C.F.R. § 3.310(a) equates to an inquiry into proximate cause requiring a 3-step analysis, namely of (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the Veteran's sleep apnea and/or hypertension may be service connected on a secondary basis. A determination of proximate cause is one of fact, for determination by adjudication personnel. Pursuant to the remand, following review of the evidence in the record, an addendum opinion was submitted in October 2020. The examiner found the Veteran’s obesity is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner offered the following rationale. He reviewed the Veteran’s history, physical examination, claims file, treatment records and medical textbooks and found that the Veteran’s service-connected conditions including diabetes, PTSD, and medicine taken for treatment are not one of the causes of his obesity. The examiner noted that the Veteran also has nonservice-connected hypothyroidism, which he found to be one of the most likely causes of obesity. The examiner noted that the Veteran was already obese in 2005 and his weight was 246 pounds when he was diagnosed and started treatment for PTSD in 2009. After reviewing the entire record, the Board finds that there is no basis to find a link between the Veteran’s service-connected PTSD and his obesity and therefore no basis to find that the Veteran’s obesity is an "intermediate step" between his PTSD and his obstructive sleep apnea so as to permit service-connection on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. Nor does the evidence support a finding of direct service connection for obstructive sleep apnea. The Board acknowledges that additional VA treatment records were received that endorse a diagnosis of sleep apnea. However, these records do not support that the Veteran’s sleep apnea incurred in or was caused by any event, injury or illness during service. The Board finds that the February 2020 examination and September 2020 addendum opinion are highly probative because the examiners provided a detailed rationale based on the Veteran's sleep study, medical history, and submitted literature. Prejean v. West, 13 Vet. App. at 448-9 (2000). The examiners did not base their opinions solely on a lack of contemporaneous medical records, but considered all of the evidence of record. The Board notes that the Veteran’s file contains very limited lay statements pertaining to the issue of service connection for sleep apnea. The Veteran indicated that his sleep apnea symptoms did not begin until after he separated from service. In addition, there is no claim-specific evidence in the record that the Veteran’s obesity was caused by the medications taken for service-connected disabilities. The opinions taken as a whole are supported by a well-reasoned rationale, importantly consistent with the other evidence of record as addressed throughout the Veteran’s appeal. Each potential pathway to service connection has been addressed in multiple VA examinations, opinions, and Board decisions. The preponderance of the evidence continues to show that the claimed condition of sleep apnea is not due to or caused by service, nor did this disorder result from the Veteran’s service-connected conditions and the medications taken for service-connected disabilities. As the medical opinions are based on an accurate interpretation of the record, the Board finds that the evidence is not in equipoise and therefore the benefit of doubt rule does not apply and service connection for sleep apnea is not warranted. Service connection for obstructive sleep apnea, including as secondary to a service-connected disability, to include resulting obesity, is denied. 2. Entitlement to service connection for hypertension, claimed as due to in-service exposure to an herbicide agent, or in the alternative, as secondary to a service-connected disability, to include resulting obesity The Veteran has asserted that his hypertension is caused by or aggravated by exposure to an herbicide agent in service, or is secondary to a service-connected disability. Under the authority granted by the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. Hypertension is not considered a presumptive condition of herbicide exposure. There is no basis in the available evidence of record to establish service connection for hypertension based on exposure to herbicides. Although VA regulations do not provide hypertension as a presumptive disability associated with herbicide agent exposure, the National Academy of Sciences (NAS) in 2006 and 2008 updates, concluded that there is “limited or suggestive evidence of an association between hypertension and herbicide exposure. 74 Fe. Reg. 32,540, 32,549; 75 Fed. Reg. 81,332, 81,333. Hypertension was moved from the “limited or suggestive” category to the category of “sufficient” evidence of an associate. Veterans and Agent Orange: Update 11 (2018). In October 2016, the Board remanded the Veteran’s claims for VA examinations, and also determined that the Veteran had served in the Republic of Vietnam, instructing the AOJ to adjudicate the Veteran’s claims in accordance with that finding. A February 2017 examiner noted the Veteran’s reported diagnosis of hypertension in 1990 and that he was prescribed medication. The examiner opined that it is less likely than not that the Veteran’s hypertension is due to his service-connected disabilities, including diabetes mellitus. The examiner’s rationale was that for hypertension to be secondary to diabetes mellitus, there must be evidence of diabetic nephropathy as renal function is the major regulator of blood pressure. The examiner noted that the Veteran has no objective evidence of diabetes mellitus nephropathy. The examiner stated that in the majority of individuals with comorbid hypertension and diabetes mellitus, hypertension antedates diabetes mellitus. (Epstein and Sowers, Hypertension, 1992; 19:403-418). In January 2018, the Board remanded the Veteran’s claim to consider literature suggesting a link between hypertension and herbicide agent exposure. A February 2019 VA examiner opined that the Veteran’s hypertension is less likely than not related to service. The examiner found that the cited study “isn’t ‘definitive’ and doesn’t prove by itself that [Agent] [Orange] causes hypertension.” In December 2019, the Board remanded for an addendum opinion addressing the 2018 study, finding the examiner’s use of the word “definitive suggests that the examiner applied a higher standard of causation than “at least as likely as not.” The Veteran was afforded a VA examination in February 2020. The examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. He reviewed the Veteran’s history, physical examination, claims file, treatment records, Agent Orange guidelines and medical textbooks. He noted the absence of any documented evidence of hypertension during service or immediately thereafter. He stated that pursuant to Agent Orange guidelines provided by VA, hypertension is not one of the presumptive conditions. Also, after reviewing standard medical textbooks and UpToDate literature, he noted that herbicide agents are not mentioned as one of the etiologies of hypertension. As to the National Academy of Science Institute of Medicine's literature indicating sufficient evidence of an association between herbicide exposure and hypertension, the examiner found this is “just a hypothesis suggested by some researchers which is still not accept[ed] by scientific society to include in medical textbook[s] as one of the etiology of essential hypertension.” As to secondary service connection, the examiner found that the Veteran’s hypertension is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that the Veteran’s records indicated he had essential hypertension at the same time as diabetes and there was no evidence of renal involvement at that time to cause secondary hypertension. The Board remanded in September 2020 for an addendum opinion addressing whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's service-connected disabilities and/or the medications prescribed for symptom management resulted in obesity that caused or aggravated the Veteran's hypertension. The addendum opinion was submitted in October 2020. The examiner found that the Veteran’s hypertension is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. He reasoned that the Veteran’s service-connected disabilities, including diabetes, PTSD, and medicine taken for treatment are not one of the causes of obesity. Further, the Veteran also has nonservice-connected hypothyroidism which is one of the most likely causes of obesity. The examiner noted that the Veteran was already obese in 2005 and his weight was 256 pounds, while he was diagnosed and began treatment for PTSD in 2009. After reviewing the entire record, the Board finds that there is no basis to find a link between the Veteran’s service-connected PTSD and his obesity and therefore no basis to find that the Veteran’s obesity is an "intermediate step" between his PTSD and his hypertension so as to permit service-connection on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. Nor does the evidence support a determination of direct service connection for hypertension, including as due to exposure to herbicide agents. The evidence does not support a finding that the Veteran’s hypertension manifested to a compensable degree within one year from the date he was discharged from active service. The Veteran’s service treatment records are negative for treatment of or diagnosis of hypertension. The Veteran was diagnosed with hypertension in 1990. The Board notes that throughout his medical records, the Veteran’s hypertension is referred to as “essential” or “primary” hypertension, indicating that his doctors determined that his hypertension is not secondary to renovascular disease, renal failure or other causes of secondary hypertension. The October 2019 examiner found that the Veteran’s records indicated he had essential hypertension at the same time as diabetes and there was no evidence of renal involvement at that time to cause secondary hypertension. The Board acknowledges that additional VA treatment records endorse a diagnosis of hypertension, however, these records do not support that the Veteran’s hypertension incurred in or was caused by any event, injury or illness during service. There is no basis in the available evidence of record to establish service connection for hypertension based on exposure to herbicides. The evidence does not support that the Veteran’s hypertension is secondary to any service-connected disability, or resulted from the medications taken for such disability. The Board finds that the February 2020 examination and September 2020 addendum opinion are highly probative because the examiners provided a detailed rationale based on the Veteran's sleep study, medical history, and submitted literature. Prejean v. West, 13 Vet. App. at 448-9 (2000). The Board notes that the Veteran’s file contains very limited lay statements pertaining to the issue of service connection for hypertension. The examiners did not base their opinions solely on a lack of contemporaneous medical records, but considered all of the evidence of record. Also, while the Veteran indicated that his hypertension began during service, his service treatment records are silent for hypertension as is his separation examination; all document blood pressure readings in the service treatment records are also within normal limits. The opinions taken as a whole indicate a well-reasoned rationale, importantly consistent with the other evidence of record as addressed throughout the Veteran’s appeal. Each potential pathway to service connection has been addressed in multiple VA examinations, opinions, and Board decisions. The medical opinions are also based on an accurate interpretation of the record. The preponderance of the evidence unfortunately shows that the claimed condition of hypertension is not due to or caused by service, nor did this disorder result from the Veteran’s service-connected conditions and the medications taken for service-connected disabilities. The Board finds that the evidence is not in equipoise and therefore the benefit of doubt rule does not apply. Service connection for obstructive hypertension, claimed as due to in-service exposure to an herbicide agent, or in the alternative, as secondary to a service-connected disability, to include resulting obesity, is therefore also denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.