Citation Nr: 21004297 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-15 560 DATE: January 26, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for benign prostatic hyperplasia (BPH) is denied. Entitlement to service connection for colon cancer, to include as due to BPH is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea is not etiologically related to active service. 2. The Veteran’s BPH is not etiologically related to active service. 3. The Veteran’s colon cancer is not related to active service nor is it secondary to a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 1. The criteria for service connection for BPH are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for colon cancer, to include due to BPH are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1964 to January 1970. In September 2019, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends he is entitled to service connection for obstructive sleep apnea and alleges that his weight problem began in service. The Board concludes that while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence weighs against finding that sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. The post-service medical records reveal that the Veteran complained of insomnia in December 2012 with the treatment note reporting poor sleep hygiene, to include drinking lots of caffeine and an irregular work schedule. The Veteran was diagnosed as having obstructive sleep apnea in January 2013. Subsequent treatment records report poor sleep hygiene to include work activity involving long drives, excessive caffeine intake, and lack of exercise. The Veteran provided a statement dated in January 2017, from a private physician, Dr. S.M., who relayed the Veteran’s reports of difficulty sleeping in service due to severe anxiety associated with combat and the removal of his left testicle as well as episodes of being shaken by his colleagues for appearing to not be breathing. Based on this review, Dr. S.M. reported that the Veteran had noted features of obstructive sleep apnea in service, which included symptoms of episodes of apnea, nonrestorative sleep and severe fatigue. The Board has considered the opinion of Dr. S.M. but affords it minimal weight as it appears to only be based on a September 2016 notification letter and review with the Veteran. The statement does not indicate or even suggest that Dr. S.M. reviewed the file or any medical records. In January 2020 the Veteran underwent a VA examination and reported sleep apnea problems back in the 90’s but stated that he was not diagnosed until January 2013. He explained that when his condition began his symptoms were heavy snoring, sometimes gasping for air during sleep and no energy during the day. Based on review of the records and in-person examination, the examiner opined that sleep apnea is less likely than not proximately due to or the result of a service connected condition as the Veteran's enlistment examination was unremarkable and the service treatment records did not document or describe any signs, symptoms or complaints of sleep apnea. The examiner’s rationale noted the Veteran’s weight at separation from service, complaints of nocturia in December 2012, reports of consumption of caffeine and an irregular work schedule and the diagnosis of sleep apnea in January 2013 but did not discuss their significance. As such, this opinion is inadequate for failing to provide a complete well-reasoned medical explanation with clear conclusions and supporting data. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In August 2020, an addendum opinion was obtained from the same examiner who again provided a negative opinion. The examiner stated that the lay testimony from J.H. dated May 28, 2019 did not report any signs or symptoms of sleep apnea and the diagnosis in January 2013 was almost 50 years since enlistment. The examiner explained that many things can happen during that time and as an elderly individual the Veteran is more prone to sleep apnea and his weight gain makes him more vulnerable. As the examiner again provided a conclusory opinion that lacks an adequate rationale, the Board affords no weight to either the January 2020 or August 2020 opinion. Another addendum opinion was obtained in September 2020 but from a different VA examiner. The examiner reviewed the records, to include the statement from Dr. S.M. noting features of sleep apnea, such as apnea, nonrestorative sleep and severe fatigue during active service. The examiner opined that sleep apnea is less likely than not incurred in or caused by service and explained that the service treatment records are silent for complaints, issues, events, diagnoses or treatments related to sleep or obstructive sleep apnea and there are no documented complaints of daytime fatigue, snoring or witnessed apnea. Additionally, the Veteran reported no for frequent trouble sleeping at the time of separation; however, the examiner did note that the Veteran’s weight of 195 pounds at enlistment increased to 261 pounds with a body mass index (BMI) of 33.5 after three years of active duty. The examiner cited to the post-service medical records, which revealed that the Veteran first reported snoring from back issues in 2012 and noted poor sleep hygiene associated with an irregular work schedule. At that time his BMI was 37.8. Prior to that, the interim medical records from 1970 to 2011 (a period of 40 years) were silent for sleep or apneic respiratory symptoms. The sleep study conducted on January 16, 2013 revealed severe obstructive sleep apnea, which was also shown on the January 24, 2020 VA examination, with noted an increased BMI of 42. The examiner cited to the medical records reporting the Veteran to be a chronic caffeine drinker, drinking over a gallon of soda per day. The examiner concluded that the weight gain during active service was not associated with sleep issues as the Veteran reported no trouble sleeping on his separation examination and the interim medical records were silent for chronic sleep issues, to include snoring or daytime fatigue. The examiner explained that the Veteran’s irregular sleeping pattern associated with his post military occupation which required traveling one to two thousand miles to deliver vehicles, his personal diet preferences and sedentary lifestyle likely caused excessive weight gain during this time obstructing his upper airways leading to obstructive sleep apnea. The examiner noted the opinion of Dr. S.M. but reported that the relative weight gain during service has limited evidence to show concurrent sleep disturbance causing obstructive sleep apnea as it was not until 2013 that obstructive sleep apnea was established, and the Veteran placed on CPAP. Thus, when considering all the evidence, to include no sleeping issues or disturbances in service, a 40-year health care gap without sleep or apneic respiratory symptoms and lack of chronic symptoms a nexus cannot be endorsed. The examiner concluded that the medical records revealing sedentary lifestyle, poor diet, to include a preference for sugary drinks, and post military occupation resulting in irregular sleeping patterns led to significant weight causing obstructive sleep apnea; therefore, it is less likely than not that sleep apnea is related to or aggravated by military service. The Board finds the September 2020 medical opinion to be persuasive and affords it significant probative weight. The opinion includes a detailed list of pertinent medical records and a reasoned medical explanation with clear conclusions and supporting data with citations to evidence in the record. Id. Furthermore, the opinion is consistent with the medical records consistently noting poor sleep hygiene. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). While the Veteran is competent to report having experienced symptoms of difficulty sleeping in service, he is not competent to determine that these symptoms were manifestations of obstructive sleep apnea. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Board gives greater weight to the September 2020 medical opinion and medical evidence of record revealing a diagnosis of obstructive sleep apnea decades after service in 2013 and consistent reports of poor sleep hygiene. The Board notes that obesity may be 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. In this case, the Veteran does not assert that obesity is an "intermediate step" between a service-connected disability and a current disability; therefore, VAOPGCPREC 1-2017 is not applicable. Accordingly, the Board finds the preponderance of the evidence insufficient to establish entitlement to service connection for obstructive sleep apnea and the claim is denied. 2. Entitlement to service connection for BPH The Veteran contends he is entitled to service connection for BPH due to attacks of prostatitis during active service. In a statement received October 2020 the Veteran alleges that his time in service, specifically from 1964 to 1966 was not considered. The Board concludes that while the Veteran has a current diagnosis of BPH, the preponderance of the evidence weighs against finding that BPH began during service or is otherwise related to an in-service injury, event, or disease. The record contains several medical opinions regarding whether the Veteran’s BPH is at least as likely as not related to an in-service injury, event, or disease, to include prostatitis. In August 2012 the VA examiner opined that it is less likely than not that acute prostatitis caused the Veteran’s current BPH. As the examiner failed to provide any rationale to support this conclusion, the opinion is afforded no weight. Nieves- Rodriguez, 22 Vet. App. 295. The Veteran underwent another VA examination in January 2020 and the examiner opined that prostate cancer is less likely than not incurred in or due to in-service prostatitis as the Veteran has BPH and not prostate cancer. The examiner noted that the Veteran received treatment for prostatitis while serving in Korea and was diagnosed as having BPH at the August 2012 VA examination. An addendum opinion was requested in August 2020 as the examiner failed to consider service connection for BPH and did not address pertinent evidence. Again, the examiner provided a negative nexus opinion stating that BPH does not increase chances of prostate cancer and neither does prostatitis. As the examiner failed to consider service connection for BPH, the Board affords no weight to either the January 2020 or the August 2020 opinions. Another addendum opinion was acquired with a new VA examiner who did address the issue at hand. In September 2020, the VA examiner opined that it is less likely than not that BPH incurred in or is due to the Veteran’s in-service prostatitis. The examiner reviewed the record and noted that the service treatment records revealed that in August 1966 the Veteran developed prostatitis and was hospitalized in Korea. The prostatitis eventually led to an atrophic left testicle resulting in an orchiectomy (for which the Veteran is already service connected). At the time of the orchiectomy there was no prostate pathology detected nor were there any residuals or complications. In February 2008 the Veteran was diagnosed as having BPH at the age of 65 years and continues to have BPH as shown by the January 2020 VA examination. For the interim years from 1971 to 2007 (a period of 36 years) the records are silent for any male reproductive issues. The examiner explained that prostatitis is commonly associated with or caused by strains of bacteria that cause infection when the bacteria enters the prostate. These infections are effectively treated by antibiotics and complications include the spread of bacteria leading to epididymitis, which may cause induced testicular atrophy. The Veteran’s orchiectomy resulted from a complicated bacterial infection. BPH, on the other hand, is an age-related prostate gland enlargement that statistically affects half of men between the ages of 51 to 60. The examiner explained that there is no direct pathophysiologic link between an acute bacterial prostate infection and BPH and no direct causal relationship between prostatic and colon cancer. While acute bacterial prostate infections affect the prostate gland, their clinical course and etiology are separate, independent and unrelated to that of BPH. Thus, based on the 36-year gap without male reproductive issues, the lack of chronicity of symptoms, and the different clinical courses and nature of prostatitis and BPH, the examiner concluded that the 2008 diagnosis of BPH is a new and separate prostate disorder unrelated to service. The Board finds the opinion of the September 2020 VA examiner persuasive as the rationale explained the differences in etiology of prostatitis and BPH while citing to supporting data from the Veteran’s medical history, to include his in-service episodes of prostatitis. As such, the Board grants accords probative weight to the September 2020 medical opinion. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran provided statements outlining his medical history, to include an attack of prostatitis in Korea and surgery in Germany. While the Veteran is competent to report his prostate symptoms and medical history, he is not competent to determine that these symptoms were manifestations of prostatitis that occurred in service as this issue is medically complex and requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also considered the buddy statement provided by J.H. who merely reiterated that the Veteran had a prostatitis attack in Korea and surgery in Germany. Consequently, the Board gives more probative weight to the September 2020 medical opinion. Accordingly, the Board finds the preponderance of the evidence insufficient to establish entitlement to service connection for BPH and the claim is denied. 3. Entitlement to service connection for colon cancer, to include due to BPH Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected condition and shall be service connected on a secondary basis. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already service-connected disability. Id. While the medical records reveal a current diagnosis of a history of colon cancer, service connection secondary to BPH is not established as it is not a service-connected condition. Therefore, the claim for entitlement to service connection for colon cancer secondary to BPH is denied. The Board has also considered whether service connection for colon cancer is warranted under a direct basis. The Board concludes that while the Veteran has a diagnosis of a history of colon cancer, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The service treatment records are silent as to any complaints, treatments or diagnoses related to colon cancer. The Veteran has not provided any statements or arguments relating colon cancer to service. As such, there is no evidence of an in-service injury, event or disease pertaining to colon cancer. While the Veteran may believe his colon cancer is related to service, the record does not contain evidence to support this allegation. Therefore, the claim for entitlement to service connection for colon cancer is denied. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran attended an audiology VA examination in December 2017. The examiner opined that tinnitus is less likely than not caused by or a result of military noise exposure as his military occupational specialty (MOS) had a low probability of noise exposure, the date of onset is unknown, and the service treatment records are silent for complaints of tinnitus. As acoustic trauma in service was conceded an addendum opinion was obtained in January 2020. The examiner opined that it is less likely than not that tinnitus incurred in or is caused by service as his tinnitus started when the Veteran was in his 40’s which is about 15 years post-service. An addendum opinion received September 2020 merely added that since tinnitus started 15 years post-service, tinnitus it is less likely as not aggravated by military service. The Board finds the opinions of records inadequate for adjudication. While evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered, the examiner failed to provide a reasoned medical explanation as to the significance of the length of time between separation and the complaints documented in the post-service medical records. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus is related to his active service, or is caused by or aggravated by military service, to include due to his already conceded acoustic trauma. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms. The examiner must specifically consider and discuss the Veteran's in-service acoustic trauma and medical history since service and the opinion and rationale should reflect such consideration. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that tinnitus is not related to service. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.