Citation Nr: 21061908 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-35 641A DATE: October 5, 2021 ORDER Service connection for sleep apnea, to include as secondary to the service-connected allergic rhinitis with chronic sinusitis, is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of sleep apnea. 2. Sleep apnea was not incurred in service and is not etiologically related to active service. 3. Sleep apnea is not caused or worsened in severity by the service-connected allergic rhinitis with chronic sinusitis. CONCLUSION OF LAW The criteria for service connection for sleep apnea, including as secondary to the service-connected allergic rhinitis with chronic sinusitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from February 1984 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision from the Regional Office (RO), which denied service connection for sleep apnea. In May 2019, the Veteran and his wife testified at a Board videoconference hearing from the RO in Nashville, Tennessee, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. The Board need not address the duties to notify and assist, as this issue is being remanded for further development. In October 2019, the Board remanded the issue on appeal for additional development, including to obtain an addendum VA medical opinion. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the October 2019 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 for Sleep Apnea is Denied. The Veteran appeals for service connection for sleep apnea. The Veteran testified that during service he recalled feeling tired throughout the day, but he thought it was due to not getting a good night sleep, and did not mention the symptoms during service. The Veteran's wife testified that she first noticed symptoms of snoring during service around 1995. She testified that, if the Veteran went silent during sleep, she would nudge him awake to see if he was still breathing. The Veteran's wife testified that she encouraged the Veteran to get tested for sleep apnea after her doctor explained symptoms of sleep apnea to her in 2012 due to her own sleeping difficulties, at which point she realized the Veteran had experienced similar symptoms. See May 2019 Board hearing transcript. Alternatively, the Veteran contends that his sleep apnea is related to the service-connected allergic rhinitis with chronic sinusitis. See May 2019 Board hearing transcript. 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. The Veteran is currently diagnosed with 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) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Initially, the Board notes that the evidence shows a current diagnosis of sleep apnea. See March 2013, October 2016 VA treatment records, November 2019 VA examination report. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding that the current sleep apnea is causally related to active service. The service treatment records are silent for complaints of symptoms or findings of sleep apnea during service. Service Reports of Medical History indicate that the Veteran specifically denied trouble sleeping during service, including during the February 2004 service separation examination. See August 2003, February 2004 service treatment records. Service treatment records are also silent for reports of any other symptoms of a sleep disorder during service including fatigue, problems with snoring, or difficulty breathing while asleep. On the February 2004 service separation report of medical assessment, the Veteran indicated "no" to the question of whether he has sustained any illness or injury on active duty that he did not seek medical care for, and he denied there were any concerns about his health. The Board has considered the Veteran's and his spouse's recent lay testimony of symptoms of snoring and fatigue during service and that the symptoms have been present since service. These more recent lay reports of symptoms of snoring and fatigue since service, made 15 years after service separation, are inconsistent with and outweighed by other contemporaneous lay histories provided during service and, especially the Veteran's own in-service denials of relevant sleep apnea symptoms, and since service separation during treatment. As noted above, the Veteran specifically denied difficulties with sleep during service, including at service separation. Post-service treatment records do not reflect contemporaneous lay histories of symptoms of sleep apnea during or since service. During an April 2004 post-service medical encounter, the Veteran endorsed multiple musculoskeletal complaints, as well as problems with sinusitis and allergies during service without mentioning any difficulties with sleep, interrupted breathing during sleep, snoring or problems with daytime fatigue. See April 2004 VA treatment record. This history presented by the Veteran is of high probative value because it was made for treatment purposes, when one is expected to present an accurate medical history in order to obtain efficacious treatment. It is also soon after service, so is almost 15 years closer in time to service when memories would be more likely to recall service events and symptoms. The first mention of feeling tired or poorly is not noted until January 2007, three years after service. Specifically, under the review of systems (ROS), the clinical note indicates "feeling tired or poorly as above;" however, the chief complaint above indicated that the Veteran was presenting for a follow up on his laboratory reports, erectile dysfunction, and nasal congestion. There was no indication of any problems with chronic fatigue or other sleep difficulties. See January 2007 VA treatment record. This was another treatment opportunity for the Veteran to report sleep apnea symptoms; the fact that he did not do so when presenting a medical history for treatment purposes is evidence against finding that he had sleep apnea symptoms at that time. Post-service treatment notes otherwise reflect that the Veteran routinely denied feeling tired or poorly, fatigue, paroxysmal nocturnal dyspnea, and orthopnea for many years after service separation while seeking treatment for other conditions, including the service-connected allergic rhinitis with sinusitis. Each of these treatment occasions is a missed opportunity to report a history or complaints relevant to sleep apna, had such symptoms actually been present; the fact that the Veteran did not report sleep apnea symptoms, and on occasion affirmatively denies such, is evidence that weighs against finding that the Veteran had sleep apnea symptoms since service. See, e.g., December 2006, March 2007, April 2007, September 2007, December 2007, August 2008, June 2009, March 2010, November 2010, January 2011. The first mention of symptoms of an actual sleep disorder is not noted until 2013, which is nine years after service, when the Veteran requested a sleep study because his wife noted an increase in snoring and possibly some apneic episodes. Notably, the Veteran did not provide a contemporaneous lay history of symptoms of chronic daytime fatigue that dated to the service period or report that he had experienced sleep apnea symptoms since service. This history is consistent with prior contemporaneous lay reports by the Veteran prior to 2013 denying feeling tired or fatigued. The Veteran also did not indicate that symptoms of snoring or possible apnea had been present during or since service. Thereafter, the Veteran was diagnosed with obstructive sleep apnea via a March 2013 sleep study. The record shows that the Veteran subsequently filed a claim for service connection for sleep apnea in April 2014, which was initially denied by the RO in a July 2014 rating decision. The Veteran did not provide a lay history of an onset of symptoms of extreme difficulty with daytime fatigue during service until a 2016 VA encounter, after the claim for service connection for sleep apneas was initially denied, and while in the midst of actively pursuing compensation benefits for sleep apnea. This more recent history suggesting in-service or post-service symptoms of sleep apnea prior to 2013 is inconsistent with, and outweighed by, the other evidence of record, which includes that the Veteran routinely denied problems with fatigue and feeling tired for many years after service prior to initial diagnosis of sleep apnea in 2013, when his wife informed him of an increase in snoring and possible apneic episodes. See March 2013, October 2016 VA treatment records; September 2013 Disability Benefits Questionnaire (DBQ). No treating nor examining physician of record has opined that the current sleep apnea was incurred in or otherwise directly related to active service. As a lay person, the Veteran and his wife are competent to report any sleep apnea symptoms the Veteran experienced at any given time; however, under the specific facts of this case that show no in-service service sleep apnea symptoms, no contemporaneous lay history of sleep apnea symptoms until almost nine years after service, and no diagnosis of sleep apnea until many years after service, the Veteran and his spouse do not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the Veteran's sleep apnea or, in the absence of continuous symptoms, to make the nexus back to service. The etiology of sleep apnea requires medical expertise and falls outside the realm of common knowledge of a lay person. The etiology of the Veteran's sleep apnea is a complex medical etiological question dealing with the origin and progression of the sleep disorder, and is diagnosed primarily on clinical findings and physiological testing rather than observation by the five senses. For these reasons, the Veteran's unsupported lay opinion under the specific facts of this case, is of no probative value. A VA medical opinion was provided in November 2019 on the theory of direct service connection. The examiner opined that it is less likely than not that the Veteran's sleep apnea was incurred in or caused by service. The VA examiner considered the recent lay evidence of symptoms of snoring that has been present since service; however, the examiner noted that lay evidence of snoring is not evidence of sleep apnea, as not all individuals who snore have sleep apnea. Additionally, the VA examiner accurately noted that the Veteran specifically denied any sleep difficulties during service, and was not diagnosed with sleep apnea until many years after service separation. As for the theory of secondary service connection (38 C.F.R. § 3.310), the Board considered the opinion provided by the Veteran's treating physicians in September 2013 and February 2014. In a September 2013 statement, Dr. McGhee wrote that the Veteran has a history of chronic sinusitis that may be contributing to the severity of his obstructive sleep apnea; however, this purported opinion is not sufficient to grant service connection for sleep apnea because the statement that sinusitis "may be" contributing the overall severity of sleep apnea symptoms is speculative, indicating mere possibility instead of speaking to the probability that chronic sinusitis actually caused or worsened the underlying condition of sleep apnea beyond a natural progression. See September 2013 Disability Benefits Questionnaire; Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that the veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Bloom v. West, 12 Vet. App. 185, 186-187 (treating physician's opinion that service "could have" precipitated a disability found too speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (the Court found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); and Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence). For the above-mentioned reasons, the Board finds this statement to be of no probative value, as it is a statement of possibility that is speculative in nature. 38 C.F.R. § 3.102 (evidence involving speculation or remote possibility does not show probability) In a February 2014 statement, Dr. Moyer noted that the September 2013 Disability Benefits Questionnaire indicated that sinusitis could be a contributing factor in regard to OSA, and wrote that it is likely that sinusitis is a compounding factor for the apnea because issues with upper airway can lead to obstruction when sleeping at night. This statement is also speculative, suggesting possibility rather than probability. The statement suggests that sinusitis "can" lead to issues with upper airway obstruction, which does not speak to the probability that such is the case under the specific facts of this case, as Dr. Moyer did not detail the specific medical evidence, to include the specific history of the development of the Veteran's sleep apneas as it relates to the service-connected sinusitis, or the medical literature that supports the opinion rendered. In November 2019 and August 2020 opinions, a VA examiner opined that it is less likely than not that the Veteran's sleep apnea was caused or aggravated by the service-connected allergic rhinitis with sinusitis. The VA examiner reviewed the claims file, to include the opinions of record and explained that, while allergic rhinitis and sinusitis can cause symptoms of nasal stuffiness and obstruction, which is a factor in sleep-disordered breathing, there is no medical evidence that either condition can cause obstructive sleep apnea (OSA). The VA examiner explained that OSA is characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep, noting that medical literature reveals that nasal and sinus surgery has been shown to not remove the objective findings associated with obstructive sleep apnea; rather, in patients with mild sleep apnea, nasal surgery meant to treat and improve sinus obstruction has in fact been shown to worsen the respiratory disturbance index. See November 2019 VA examination report. Additionally, in terms of aggravation, the VA examiner reasoned that, while allergic rhinitis and sinusitis can cause nasal stuffiness and obstruction, the medical evidence does not support that the two conditions are aggravating factors of the underlying obstructive sleep apnea. Specifically, according to medical literature, craniofacial or upper airway abnormalities increase the likelihood and severity of sleep apnea, such as abnormal maxillary or short mandibular size, a wide craniofacial base, and tonsillar and adenoid hypertrophy. The VA examiner noted that the indication that nasal obstruction does not aggravate OSA is supported by studies that indicate that nasal and sinus surgery has not been shown to remove the objective findings associated with obstructive sleep apnea. See August 2020 VA examination report. When considered in light of the entire record, the Board finds the VA medical opinions to be of more probative value, as they are based on factual assumptions that are consistent with the Board's findings, are stated in terms of probability, are supported by rationale that considers the Veteran's lay assertions, and considered the contrary opinions of record in light of the medical literature and a review of the evidence as a whole. For these reasons, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current sleep apnea and the allergic rhinitis with chronic sinusitis. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for sleep apnea on all theories of service connection, 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.