Citation Nr: 21061358 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-40 730 DATE: October 1, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected allergic rhinitis, is denied. FINDING OF FACT OSA did not manifest in active duty, was not otherwise caused or aggravated by any incidence of active duty; and OSA is not proximately caused by, or aggravated beyond its natural progression by, service-connected allergic rhinitis. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training from October 1985 to March 1986 and on active duty from February 1987 to September 1987 in the United States Air Force as an apprentice security specialist, and in the United States Army from January 1997 to October 1999 as an automated logistical specialist. The Veteran also had Reserve service. In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The claims file contains a copy of the hearing transcript. In May 2021, the Board remanded the claim for further development of the evidence; the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION The Veteran asserts that OSA was proximately caused by, or aggravated beyond its natural progression by, service-connected allergic rhinitis. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Evidence and Analysis In the Veteran's September 1987 Air Force separation report of medical examination, a clinician reported normal clinical evaluations of lungs, chest, and neurological status. In the associated Separation Report of Medical History, the Veteran indicated that she had not had, and did not have sinusitis; ear, nose, or throat trouble; shortness of breath; or pain or pressure in chest. The Veteran did respond positively to asthma and frequent trouble sleeping. The extensive physician's summary in this history indicated "asthma secondary to exercise," first diagnosed in August 1985, treated with an inhaler, and currently asymptomatic. In an April 1999 Army physical examination, the examiner noted no nose, mouth, throat or lung abnormalities. There was no mention of interrupted sleep or daily drowsiness. In a July 1999 medical evaluation board report, a physician commented on episodes of hyperactivity and lack of sleep with medication that did cause drowsiness but no mention of interrupted breathing during sleep. In June 2010, the RO denied the Veteran's first claim for service connection for sleep apnea because she did not submit and there was no evidence in the record of testing or diagnosis of sleep apnea. In December 2014, Dr. F.M., a private pulmonary and sleep medicine physician, reported that the Veteran reported daytime somnolence and awakening at night gasping for air for the past 12 years, which would be about 2002. She also reported coughing at night. Following testing, in January 2015, the physician diagnosed "habitual snorer, no evidence of sleep disordered breathing, Somnolence during the day probably related to medications." Testing showed no significant sleep apnea. VA outpatient treatment records through 2015 show no reports or treatment for sleep apnea. In her August 2016 notice of disagreement (NOD), the Veteran stated that the RO dismissed her claim for OSA because allergic rhinitis "could not" be service connected. A review of the Veteran's VA treatment records reveals clinicians tracked her medications and her complaints and accounts of treatment. Moreover, the Veteran was afforded consultations, laboratory services, and imaging services. In October 2018, a clinician indicated that the Veteran presented at a VA outpatient clinic with concerns of sleep apnea with snoring as well as chronic fatigue. In August 2019 and October 2019 VA sutures out (S/O) post-hysterectomy notes, a clinician reported that the Veteran had sleep apnea. The Veteran's chronology of treatment at the Darnell-Hood Army Medical Center (AMC) provides no evidence as to complaints or treatment for OSA; that is, until a March 2020 sleep study report in which a clinician indicated that the results were constitutive of severe OSA. This clinician offered an appointment in the continuous positive airway pressure (CPAP) "start class". At the March 2020 Board hearing, the Veteran testified that her OSA is attributable to service. The Veteran also indicated that she did not receive testing in service. However, the Veteran reported that her friend informed her of the possibility that she might have OSA. In June 2020, VA received two lay statements from the Veteran's relatives. In pertinent part, these parties noted that the Veteran snores loudly and gasps for breath during periods of sleep. These parties indicated that these symptoms had existed since 1997. In February 2021, a VA clinician provided a positive nexus opinion for allergic rhinitis. Consequently, the RO granted service connection for this disability in a March 2021 rating decision. While a February 2021 VA clinician opined that asthma, which remains non-service connected in any form, may affect OSA, which the Veteran has, the clinician did not address the likelihood of OSA being proximately caused by, or aggravated by allergic rhinitis. Consequently, as noted above, the Board remanded the issue for an addendum opinion. In July 2021, a VA clinician submitted an addendum opinion, which responded to the Board's remand directives comprehensively. Upon a thorough recitation of the evidence of record, to include the Veteran's testimony and other lay statements, this clinician provided a negative nexus opinionthe Veteran's present OSA is less likely than not proximately due to or the result of service-connected allergic rhinitis. (As to the aggravation element secondary service connection, the clinician opined that the Veteran's "military records are silent for a diagnosis of OSA, hence there, necessarily, can be no evidence of aggravation). This clinician provided a rationale for this negative nexus. Sleep apnea is due to collapse or near collapse of the soft tissues of the pharynx when the relax in sleep. OSA is caused by repetitive bouts of upper airway obstruction during sleep as a result of the narrowing of respiratory passages. The most common site of obstruction is the nasopharynx. Risk factors include obesity, some abnormal tongue shapes, tonsillar hypertrophy [..., and] abnormalities (congenital) [in] jaw shapes. Congestion of the nose [,] like that associated with [a]llergic rhinitis [,] does not increase the resistance of the pharynx nor [causes] relaxation of the pharynx in sleep and therefore does not progress or aggravate OSA. [Consequently,] it is less likely that [the Veteran's OSA] was proximately caused by, or aggravated [in any way] by, [the Veteran's service-connected] allergic rhinitis. Additionally, this clinician referenced two internet sites which support his findings. See July 2, 2021 C&P Exam p. 2 (first from the top). The Veteran believes that her OSA was proximately caused by, or aggravated beyond its natural progression by, service-connected allergic rhinitis. The Board has considered the Veteran's sincere belief; however, upon review of the evidence of record, the Veteran does not have the specialized medical knowledge to render an opinion as to proximate cause or aggravation of OSA. Moreover, there is no evidence that reflects that a competent clinician conveyed this theory of causation or aggravation to the Veteran directly. Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428. Therefore, the Veteran's lay contentions do not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board assigns substantial probative weight to the comprehensive opinions of the June 2021 VA clinician. The competent expert summarized the evidence of record, to include the Veteran's testimony and other lay statements. Upon careful consideration of this totality, the clinician provided a negative nexus opinion, as to whether the Veteran's OSA is secondary to service-connected allergic rhinitis. Furthermore, this clinician provided a thorough rationale to support this opinion. While the present disability requirement exists for OSA, the weight of evidence is against establishing an in-service incurrence. As discussed above, the most competent clinical evidence of record fails to disclose that there was any incurrence of OSA in service. The Board considered the lay statements of observation of the Veteran's snoring and interrupted breathing since 1997 but places less credible and probative weight on the statements because they are not consistent with the STRs that addressed sleep problems caused by reasons other than sleep apnea, and December 2014 and January 2015 private records that addressed, tested, and did not diagnose sleep apnea. Moreover, the weight of evidence fails to establish that OSA was proximately caused by, or aggravated beyond its natural progression by, the Veteran's service-connected allergic rhinitis. Consequently, service connection is not possible for this disability on a secondary basis. Allen, 7 Vet. App. 439. Therefore, the weight of competent and credible evidence is against granting the Veteran's service connection claim and there are no doubts to be resolved. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.