Citation Nr: 21064780 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-14 291 DATE: October 21, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected disabilities, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's OSA is related or attributable to his service including caused or being aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for OSA, including as secondary to service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to July 1976. This appeal to the Board of Veterans' Appeals (Board) is from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, May 2021, and most recently in August 2021, the Board remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration. There since has been the required compliance, certainly acceptable substantial compliance, with the Board's remand directives particularly since that most recent remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for OSA, including as secondary to service-connected disabilities. Service connection is granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) the presently claimed disability; (ii) incurrence or aggravation of a relevant disease or injury in service; (iii) and a causal relationship ("nexus") between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its competency and credibility to, in turn, determine its probative value in relation to other relevant evidence. Baldwin v. West, 13 Vet. App. 1 (1999). Service connection also is permissible on a secondary basis for disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). The Board's analysis of this claim focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant); see also Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The Veteran partly contends that he has OSA secondary to his service-connected disabilities especially owing to his arteriosclerotic heart disease, type 2 diabetes mellitus (formerly rated with hypertension), and bilateral (left and right) lower extremity neuropathy. OSA was diagnosed based on the results of a sleep study in May 2014; thus, it is not in dispute that the Veteran has this claimed condition. However, the Board concludes that the preponderance of the evidence is against finding that his OSA is proximately due to, the result of, or being aggravated by his service-connected disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In January 2015 and May 2016, the Veteran submitted Disability Benefits Questionnaires (DBQs) completed by his private cardiologist and sleep medicine physician. These physicians indicated the Veteran's coronary artery disease, coronary artery bypass graft, congestive heart failure, type 2 diabetes mellitus, and hypertension are all related to his OSA. Most of the probative value of a medical opinion, however, comes from discussion of its underlying reasoning or rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In May 2015, so in the interim, VA requested additional medical comment concerning the etiology of the Veteran's OSA. The responding examiner opined that the Veteran's OSA is less likely than not due to or the result of his service-connected diabetes with hypertension. This VA examiner reasoned that peer reviewed medical literature does not support the notion that OSA is caused by diabetes or that diabetes is a risk factor for OSA; however, there conversely is evidence that OSA can lead to hyperglycemia and a diagnosis of diabetes. This VA examiner cited to medical articles but, notably, did not discuss how those articles are relevant to the Veteran's particular situation and circumstance. See, e.g., Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998). That examiner also did not discuss whether the Veteran's heart disease was implicated. A May 2016 note from a private physician states that it is more likely than not that the Veteran's OSA is related to his ischemic heart disease (IHD) and diabetes. But, again, no rationale was provided for that conclusion. In January 2017, after reviewing available medical records and peer review material, a VA examiner pointed out that on-line medical literature in UpToDate (an online medical literature resource provided by VA) indicates there is no objective evidence that Type II Diabetes Mellitus or IHD cause or aggravate OSA. This VA examiner noted that, per UpToDate, the important risk factors for OSA are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. The article also explained that rates of OSA are also increased in association with certain medical conditions, such as pregnancy, end-stage renal disease, congestive heart failure, chronic lung disease, and stroke. But, notably, this VA examiner did not discuss this Veteran's medical history or circumstances. In December 2017, the Veteran submitted several medical articles purporting to show a bi-directional association between OSA and type 2 diabetes mellitus and heart disease. A March 2021 VA examiner concluded the Veteran's OSA is less likely than not proximately due to or caused by his service-connected disabilities. This VA examiner provided several opinions; however, in each of the opinions, the examiner simply indicated the Veteran's OSA was less likely than not proximately due to or aggravated by the respective service-connected disability. As "rationale", the examiner merely noted the Veteran's OSA and the addressed disability were not medically related, that OSA is a separate entity entirely from the service-connected disability and unrelated to it. But this examiner did not provide sufficient rationale for the opinions indicated, including conclusions supported by sound medical research and/or principles. A September 2021 VA examiner opined that the Veteran's OSA was not caused or aggravated by his service-connected disabilities. Regarding his diabetic nephropathy and nephrosclerosis with hypertension, this most recent VA examiner explained there is no direct or indirect correlation. This VA examiner concluded the Veteran's OSA is secondary to his age and high Body Mass Index (BMI). He added, there is no medical literature suggesting that kidney condition in the setting of high BMI is a risk factor or contributes to OSA. This VA examiner also addressed a medical article the Veteran had submitted, noting the article states that whether diabetes also contributes to mechanical alterations in the upper airway and thus increasing upper airway collapsibility during sleep remains an open question. This VA examiner surmised that the study itself that the Veteran gave does not fully correlate type 2 diabetes mellitus with OSA. This VA examiner also determined that the bilateral lower extremity neuropathy and OSA have no direct correlation. He explained that OSA is a disease of the upper airway and there is no medical literature suggesting the lower extremities can lead to or aggravate OSA. Similarly, regarding the Veteran's service-connected heart conditions, this VA examiner opined that OSA has no indirect or direct correlation. Instead, reiterated this VA examiner, the Veteran's OSA is secondary to his age and high BMI. This examiner said there is no medical literature suggesting that a cardiac condition in the setting of high BMI is a risk factor or contributes to OSA. To the contrary, this examiner noted that, in fact, OSA conversely is a risk factor for these other conditions, not the other way around. Lastly, that VA examiner stated that the Veteran's obesity (high BMI) was not caused by any of his service-connected disabilities, explaining that weight gain is largely a result of poor eating behavior and lifestyle. Moreover, according to this examiner, there is no medical literature suggesting that diabetes or lower extremity neuropathy increases the risk of poor eating habits that increase the risk of becoming overweight. This VA examiner suggested that one can maintain a less active lifestyle and still stay at ideal weight depending on what is consumed. Therefore, the claimed weight gain is not related to any service-connected disabilities. This opinion tends to rule out any notion that the Veteran's obesity was an "intermediate step" between his service-connected disabilities and OSA. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VAOPGCPREC 1-2017 (Jan. 6, 2017). That September 2021 VA examiner, therefore, completely disassociated the service-connected disabilities from the OSA, either in the way of causation or aggravation. Moreover, that examiner provided the relevant risk factors and went into detail in explaining why the Veteran's OSA is associated with known risk factors of this condition and why his service-connected disabilities conversely can be excluded. The preceding medical opinions, both for and against the claim, so including the favorable January 2015 and May 2016 opinions, in comparison, are not supported by any clinical evidence or underlying reasoning or rationale, which significantly reduces their probative weight. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177 (180) (1995). In the Neives-Rodriguez decision, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. The VA opinion provided most recently in September 2021 does not suffer from these important shortcomings and, consequently, is the most probative evidence in determining whether the Veteran's service-connected disabilities either cause or aggravate his OSA, explaining why they do not. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). This commenting clinician expressed familiarity with the entire record and clearly discussed the underlying rationale for the opinion. The January 2015 and May 2016 supporting nexus opinions from the Veteran's private providers, in comparison, are must less detailed especially in terms of providing the all-important explanation. Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The September 2021 VA examiner's opinion was based not just on a review of the claims file, since that, itself, is not determinative of the probative value of an opinion since, as an example, the Veteran could be a credible historian, but also supported by adequate rationale and explanation of the medical factors involved. The Board thus finds the opinion to be probative evidence in this matter and, in the absence of equally or more probative evidence to the contrary, most persuasive. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Regarding the articles the Veteran has submitted in support of his claim, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given Veteran's claim, and the article information the Veteran submitted falls into this general category. Although the articles discuss a relationship between OSA and diabetes and heart disease, none of the articles pertain specifically to this Veteran. Additionally, the article stated that more research is needed to clarify the mechanisms underlying the bi-directional association between OSA and type 2 diabetes. And the VA examiner clarified what certain articles the Veteran submitted posit versus what he mistakenly interpreted them to say. Therefore, this evidence is not persuasive regarding the determinative issues of causation and aggravation, especially when considering the September 2021 VA examiner specifically considered them and, yet, ultimately determined they do not apply to the Veteran's specific situation. The Board also has considered the Veteran's personal assertions that his OSA was caused or is being aggravated by his service-connected disabilities. However, the etiology of OSA is a complex medical question beyond his lay competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Generally, lay testimony is not competent to prove that which would require specialized knowledge or training."). The question of whether lay versus medical evidence is needed to substantiate a claim is a case-by-case determination and dependent on whether the condition being claimed is complex versus simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence is needed when the determinative question is one requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1) and (2). Having failed to establish that his OSA is either proximately due to, the result of, or aggravated by his service-connected disabilities, the Veteran's claim of entitlement to secondary service connection for OSA is denied. The Board next turns to additionally addressing possible entitlement to direct service connection for the OSA, since all potential theories of entitlement must be considered, but this other theory of entitlement also fails. Robinson v. Peake, aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In March 2021 correspondence, the Veteran's representative alleged this additional theory of entitlement to direct service connection, citing the Veteran's spouse's attestation that he has been snoring "for as long as she can remember" and then arguing that "[i]t is likely Mr. [REDACTED] suffered from sleep apnea in service before it was recognized like it is now." The Veteran has not had a VA examination for a medical nexus opinion addressing this notion of direct service connection in response to his claim because there is no evidence other than the unsubstantiated lay assertions by the Veteran's representative and, more generally, by the Veteran's wife suggesting his OSA may be directly attributable to his military service on the premise that it incepted (i.e., onset or originated) during his service. So even the low threshold standard for determining when a VA examination and opinion are required is not met. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4). VA is not required to schedule an examination for a medical nexus opinion merely as a matter of course, such as just because the Veteran alleges there is indeed this relationship between his claimed disability and his military service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone). This is especially true when the particular condition at issue is not the type that is readily amenable to mere lay diagnosis or probative lay comment regarding its etiology, so in turn potential relationship to or with the Veteran's military service. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Federal Circuit Court held that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. But the Federal Circuit Court went on to clarify in Waters that a Veteran's mere conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination, since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case. Here, the available evidence does not tend to suggest the Veteran had OSA during his time in service which ended many years ago, in July 1976. His STRs are unremarkable for complaints or treatment of this condition or any symptoms commonly associated with it, including the snoring his wife has attested to observing him experience for as long as she can remember. A history of snoring is not tantamount to a history of sleep apnea. The record does not establish that the Veteran's spouse has the necessary training or expertise to differentiate between snoring and sleep apnea. As such, this is not the type of lay-observable cause-and-effect relationship contemplated by Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Veteran's spouse is not competent to provide a nexus opinion in this case. Accordingly, as there is no competent evidence suggesting a direct link between the Veteran's sleep apnea and service, this claim must be denied. The Board has considered the benefit of the doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.