Citation Nr: 21061555 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-04 820 DATE: October 4, 2021 ORDER Service connection for vascular disease (claimed as peripheral vascular disease and surgery residuals), to include as associated with an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) is denied. Service connection for obstructive sleep apnea, to include as associated with an undiagnosed illness, a MUCMI, or as secondary to the service-connected posttraumatic stress disorder (PTSD) or traumatic brain injury (TBI), is denied. FINDINGS OF FACT 1. The Veteran has current diagnoses of obstructive sleep apnea and vascular disease, to include peripheral vascular disease status post aortoiliac and right femoral endarterectomy and abdominal aortic aneurysm. 2. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 3. Symptoms of vascular disease were not chronic in service, not continuous since service, and did not manifest to a compensable degree within one year of service. 4. Vascular disease was not incurred in service and is not etiologically related to active service. 5. Obstructive sleep apnea has been diagnosed during the current appeal. 6. Obstructive sleep apnea was not incurred in service and is not etiologically related to active service. 7. Obstructive sleep apnea is not caused or worsened by the service-connected PTSD or TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for vascular disease have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1985 to April 1986, and from November 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued August 2013 and April 2014 by Department of Veterans Affairs (VA) Regional Offices (RO). The matters were previously before the Board in March 2019, October 2020, and April 2021. In April 2021, the Board remanded the issues on appeal for additional development, including to obtain addendum VA medical opinions with supporting rationales on the theories of direct and secondary service connection. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the April 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires 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 in or aggravated by service. In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). The Veteran is currently diagnosed with peripheral vascular disease, which is considered an "cardiovascular disease" recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for vascular disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is also currently diagnosed with obstructive sleep apnea, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply as to this issue. Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Lay persons are competent to report objective signs of illness. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The DD Form 214 and service treatment records reflect that the Veteran served in Southwest Asia from 1990 to 1991; therefore, this Veteran is a Persian Gulf veteran as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). 1. Service Connection for Vascular Disease The Veteran asserts that he has suffered from vascular disease since discharge from service. Alternatively, the Veteran asserts that the current vascular disease is related to service in the Southwest Asia Theater of operations. See April 2014 Notice of Disagreement (NOD), February 2016 VA Form 9. The evidence shows that the Veteran has a current diagnosis of vascular disease, to include peripheral vascular disease status post aortoiliac and right femoral endarterectomy, and abdominal aortic aneurysm. See November 2012, February 2014 VA treatment records; July 2021 VA examination report. At the outset, the Board has considered whether service connection is warranted for vascular disease under the Persian Gulf War (qualifying chronic disability) presumptions. See 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Board finds that the peripheral vascular disease with abdominal aortic aneurysm is not an undiagnosed illness or MUCMI, as the disability does, in fact, carry a diagnosis and clear etiology. For vascular disease to be due to an undiagnosed illness or MUCMI, the symptoms would have to be not attributable to another, specific cause. Only if such symptoms are not related to a diagnosed disability with clear etiology, i.e., lower extremity claudication not due to vascular disease, may it be found to be due to an undiagnosed illness or MUCMI. The VA examiner indicated that the vascular disease is a diagnosable condition with a clear etiology. See July 2021 VA examination report. As such, the vascular disease is not an undiagnosed illness or medically unexplained chronic multi symptom illnesses. As the disability has been diagnosed, the provisions pertaining to undiagnosed illnesses and MUCMI are not applicable. See U.S.C. § 1117; 38 C.F.R. § 3.317. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a finding that symptoms of vascular disease were chronic in service, were continuous since service, or manifested to a compensable degree within one year of service. The service treatment records are silent as to symptoms, diagnosis, or treatment of vascular disease, to include complaints of pain, poor circulation, burning sensations, or claudication in the lower extremities during service. Service treatment records shows that the vascular system and lower extremities were clinically normal during service, including during the April 1991 service separation examination. Additionally, the Veteran specifically denied any problems with cramping in the legs on the Reports of Medical History. See December 1985, November 1989, April 1991 service treatment records. Post-service treatment notes are silent as to any symptoms of vascular disease until 2010, when the Veteran endorsed problems with pain in the hips and legs over the past year that was worse with walking. An angio-abdominal aorta CT was provided in 2012 for indications of worsening claudication, which revealed aortoiliac occlusive disease. During a November 2012 pre-operation examination, the Veteran provided a contemporaneous lay history, for the purpose of treatment, of significant buttock, hip and leg claudication bilaterally for last four to five years (i.e., since approximately 2007), which places the onset of symptoms of vascular disease to approximately 16 years after service separation. The record shows that the Veteran underwent an aortoiliac and right femoral endarterectomy with patch angioplasty in November 2012. A 2.5 cm abdominal aortic aneurysm developed in 2014, two years post-operation. See September 2010, October 2010, November 2012, February 2014 VA treatment records. These histories of post-service onset of symptoms years after service that were presented for treatment purposes are highly probative because one would be expected to give an accurate medical history in order to receive efficacious treatment. This same evidence also shows that symptoms of vascular disease did not manifest within one year of active service, as symptoms of the vascular disease were not reported until 19 years after service separation. Lay histories provided for the purpose of treatment indicate an onset of vascular disease symptoms no earlier than 2007, that is, 16 years after service separation. See 38 C.F.R. § 4.104, Diagnostic Code 7114. As to the question of direct service connection, the weight of the lay and medical evidence also shows that the current vascular disease was not incurred in or etiologically related to service, to include exposure to toxin in the Southwest Asia Theater of operations. While the Veteran asserts that he has had vascular disease since service separation, for reasons explained above, this more recent assertion is inconsistent with and outweighed by other evidence of record, including the contemporaneous service treatment records, which show that the vascular system and lower extremities were clinically normal and that the Veteran denied any problems with cramping in the legs during the April 1991 service separation examination. The more recent assertion of vascular disease, to include symptoms of such, since service separation is also inconsistent with more contemporaneous lay histories provided by the Veteran for the purpose of treatment, which placed the onset of vascular disease symptoms in the lower extremities no earlier than 2007, that is, 16 years after service separation. The earlier histories reported by the Veteran contemporaneous to service, and the histories provided by the Veteran for treatment purposes, as well as treatment record of evidence, outweigh the Veteran's more recent story, made many years after service and solely for compensation purposes, that he had vascular symptoms since service. A review of the VA treatment records does not suggest a nexus between the current vascular disease and active service, including due to any exposures during service in the Southwest Asia Theater of operations. Service and VA treatment records show a longitudinal history of tobacco use, as the Veteran endorsed tobacco use (cigarettes) during the December 1985 service enlistment exam, which continued for many years after service. Post-service lay reports indicate that the Veteran smoked a half pack to a pack per day for at least 30 years. See December 1985 service treatment record; August 2001, November 2012 VA treatment records. VA medical opinions were provided in December 2015, January 2021, and July 2021. The VA examiners opined that it is less likely than not (less than 50 percent probability) that the vascular disease was incurred in or otherwise related to service, to include due to Gulf War exposures. The rationales provided indicate that the available medical literature does not support a link between any known Persian Gulf War exposures and the development of vascular disease. The examiners noted that it is more likely than not that the vascular disease was caused by the Veteran's history of tobacco use and dyslipidemia. Specifically, the medical literature indicates that tobacco abuse is the leading modifiable risk factor for the development of peripheral vascular disease and abdominal aortic aneurysm, as 90 percent of all vascular disease patients have a history of tobacco use. Other risk factors noted included hyperlipidemia, family history of atherosclerosis, and being of male gender. In this case, the examiners noted that the Veteran has a history of tobacco use of 1/2 pack per day for thirty years with cessation in November 2012, as well as additional risk factors of obesity, hypercholesterolemia, and a positive family history for cardiovascular disease per his self-reported history. See December 2015, January 2021, and July 2021 VA examination reports. Taken together, the Board finds the VA medical opinions in December 2015, January 2021, and July 2021 are probative in light of the evidence as a whole, which includes no evidence of symptoms, findings, or diagnosis of vascular disease during service; post-service contemporaneous lay histories for treatment purposes indicating an onset of vascular disease symptoms many years after service separation; and the medical opinions that note the Veteran has various other risks factors for the development of vascular disease per medical literature, including tobacco abuse, high cholesterol, and family history of cardiovascular disease. This evidence outweighs the suggestion that exposures during the Veteran's Gulf War service caused the vascular disease a suggestion unsupported by evidence to link such Gulf War exposures to the post-service development of vascular disease many years after service. For claims filed after June 9, 1998, Congress has prohibited the grant of service connection for a disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110, 1131; 38 C.F.R. § 3.300(a). The Veteran filed the current claim in 2013; therefore, the assertion of in-service smoking is against the claim for service connection as it suggests a nonservice-related etiology (prohibited as a matter of law and policy) for the claimed vascular disease, regardless of when the smoking began. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current vascular disease and active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for vascular disease (including any residuals of vascular surgery) on a direct, presumptive, or any other basis, and the claim must be denied. 2. Service Connection for Sleep Apnea The Veteran asserts that service connection for obstructive sleep apnea is warranted. Specifically, the Veteran asserts that he has experienced sleep apnea since service. Alternatively, the Veteran asserts that his sleep apnea was caused by service in the Persian Gulf War or is due to the service-connected PTSD and/or TBI, citing to a medical study. See May 2014 NOD, February 2016 VA Form 9. The evidence shows a current diagnosis of sleep apnea. See January 2014 private treatment record; July 2021 VA examination report. At the outset, the Board has considered whether service connection is warranted for sleep apnea under the Persian Gulf War (qualifying chronic disability) presumptions. See 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Board finds that sleep apnea is not an undiagnosed illness or MUCMI, as the disability does, in fact, carry a diagnosis with a clear etiology. For sleep disorder to be due to an undiagnosed illness or MUCMI, the symptoms would have to be not attributable to another, specific cause. Only if such symptoms are not related to a diagnosed disability with clear etiology, i.e., sleep impairment not due to sleep apnea, may it be found to be due to an undiagnosed illness or MUCMI. The VA examiner noted that obstructive sleep apnea is a diagnosable condition with a clear etiology. See July 2021 VA examination report. As such, sleep apnea is not an undiagnosed illness or medically unexplained chronic multi symptom illnesses. As the disability has been diagnosed, the presumptive service connection provisions pertaining to undiagnosed illnesses are not applicable. See U.S.C. § 1117; 38 C.F.R. § 3.317. After reviewing all the evidence, the Board finds that the weight of the evidence is against a finding that the current sleep apnea was directly incurred in, or is etiologically related to, active service, to include due to exposure to toxins during service in the Southwest Asia Theater of operations. The service treatment records are silent as to complaints, symptoms, or findings suggestive of sleep apnea. The service Reports of Medical History show that during service the Veteran specifically denied frequent trouble sleeping, and the treatment record and histories are silent for any signs or symptoms of sleep disordered breathing, a witnessed apnea, loud snoring, or excessive daytime fatigue during service. See December 1985, November 1989, April 1991. Post-service treatment records also show no signs or symptoms of sleep apnea until many years after service. The first mention of any problems with fatigue is not noted until 2001, 10 years after service separation, and even when reporting a medical history at that time the Veteran did not report that symptoms of fatigue had been present during or since service separation. Additionally, in this medical history in 2001 there were no reports of problems with sleep, as the Veteran endorsed getting seven to eight hours of sleep a night. There was also no mention of witnessed apneas or sleep-disordered breathing at this time. The VA physician noted that the Veteran reported multiple symptoms, some which were possibly due to his psychiatric disorder or to his elevated mean cell volume. The Veteran did not endorse symptoms of trouble sleeping until 2003, 13 years after service, which has been managed, as well as compensated and rated as a symptom of his service-connected psychiatric disability. See August 2001, October 2003, February 2011 VA treatment records. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The evidence shows that the Veteran was first diagnosed with severe sleep apnea in January 2014 via a sleep study, 23 years after service separation. Post-service treatment records also indicate that VA health care providers notified the Veteran as early as 2010 that his body mass index (BMI) and weight was considered overweight/obese and that sleep apnea is a health risk of obesity. See January 2014 private treatment record; October 2010, April 2015 VA treatment records. The obesity is a non-service-related factor that has not been shown or alleged to be related to service. There is no competent medical opinion of record that relates the current sleep apnea to service, and post-service treatment records do not indicate that symptoms of sleep apnea have been present since service or are otherwise related to service, to include due to due to exposure to toxins during service in the Persian Gulf War. VA medical opinions were provided in January 2016, January 2021, and July 2021. The Board has given no weight to the January 2016 VA medical opinion, as it was conclusory with no supporting rationale. The VA examiners in January 2021 and July 2021 opined that it is less likely than not that obstructive sleep apnea was incurred in or caused by service, to include exposures during the Gulf War. The rationales provided indicate that obstructive sleep apnea is a physical obstruction in the posterior pharynx limiting the movement of air in and out of the lungs, and there is no medical evidence of an exposure in Southwest Asia that causes the pharynx to collapse during sleep. The evidence does not otherwise indicate a link between the current sleep apnea and service as the Veteran denied having experienced symptoms of allergies, sinusitis, or sleep disturbances during service, including during the April 1991 service separation examination. The Veteran did not report difficulty falling or staying asleep until about 2003, which the examiner noted is related to insomnia, which is a separate condition from the current sleep apnea. The examiners reasoned that per medical literature the sleep apnea is more likely related to the Veteran's obesity, male gender, and tobacco use. See January 2021 and July 2021 VA examination reports. The VA examiner in July 2021 opined that it is less likely than not that sleep apnea was caused or aggravated by the service-connected PTSD or TBI. The VA examiner noted that a thorough review of the medical literature failed to establish a relationship between sleep apnea and PTSD or TBI in this case. With regard to PTSD, the examiner noted that a 2018 study reported in the Journal of Clinical Sleep Medicine found no difference in the rate of obstructive sleep apnea between veterans with and veterans without PTSD. As for TBI, the examiner noted that TBI could be related to OSA if the TBI resulted in facial or neck trauma that caused airway obstruction; however, there is no indication in this case that the Veteran suffered facial or neck trauma as a result of the TBI. See July 2021 VA examination report. The VA examiner considered the Veteran's lay report in the May 2014 NOD that a Walter Reed Army Medical Center study concluded, "sleep apnea is not only more prevalent where the veteran is service-connected for traumatic brain injury (TBI) and/or PTSD but also as a result of combat itself." The VA examiner noted that the study the Veteran referenced was a 2011 study, which reported that sleep disturbances and sleep disordered breathing are common, are non-specific findings, as sleep disordered breathing is an umbrella term, from simple snoring to clinical obstructive sleep apnea, and does not link PTSD or TBI as an etiology of OSA. The VA examiner also noted that the study the Veteran referenced is dated from more than 10 years ago, and was a low-level case review/retrospective review of 69 Veterans who had been referred for a sleep issue, but was not a randomized controlled study. Per medical literature, well-established clinical risk factors for obstructive sleep apnea include older age, male gender, obesity, and craniofacial and upper airway abnormalities. Additionally, smoking is also a lesser well-established risk factor that may worsen sleep apnea. When considered in light of the entire record, the Board finds the VA medical opinion to be probative, as it is supported by rationale that considers the Veteran's lay assertions in light of the medical literature, a review of the evidence as a whole, the accurate facts in this case as found by the Board, and the Veteran's other risk factors for sleep apnea. Based on the evidence of record, the weight of the competent and credible evidence is against a relationship between the Veteran's current sleep apnea and active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for sleep apnea on a direct, presumptive, or any other basis, and the claim must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.