Citation Nr: 21065849 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-18 264 DATE: October 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to chronic kidney disease (CKD) with hypertension or migraine headaches, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's OSA is proximately due to, or aggravated by, his service-connected CKD with hypertension and/or migraine headaches. CONCLUSION OF LAW The criteria for service connection for OSA due to service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from February 1985 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previously before the Board in October 2018. In its decision, the Board remanded the claim to obtain an addendum opinion as the August 2013 VA opinion was found to be inadequate. The claim was again remanded in April 2021 due to noncompliance with the Board's remand directives. The claim now returns to the Board for further appellate consideration. On review, the Board finds substantial compliance with its April 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Pertinent Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran contends that he is entitled to service connection for OSA. The Veteran does not contend, and the medical evidence does not show, that his OSA was directly incurred in service. Rather, the Veteran asserts that his OSA is secondary to his service-connected CKD with hypertension or alternatively to his service-connected migraine headaches. See April 2013 Statement in Support of Claim and May 2013 VA Form 9. As an initial matter, the Veteran is currently diagnosed with OSA. See August 2013 VA Examination Report. In addition, the Veteran is service connected for CKD with hypertension as well as migraine headaches. Therefore, the first two elements for secondary service connection are met. As such, the claim hinges on whether there is a competent nexus opinion that relates the current disability to at least one of his service-connected disabilities. Several VA medical opinions have been obtained throughout the duration of the claim and all are unfavorable to the claim. The first VA opinion in August 2013 simply stated that sleep apnea had no association with hypertension, migraines or kidney disease and were not causes or risk factors for the condition. The opinion was found inadequate by the Board which resulted in the October 2018 Board remand for another opinion. Thus, the Board provides the August 2013 opinion no probative weight. Pursuant to the Board remand, another VA medical opinion was obtained in October 2019. The examiner opined that the OSA was not proximately due to, or the result of, CKD with hypertension, stating that the two conditions were not medically related, and the medical literature did not support a medical relationship. The examiner listed the risk factors and the medical conditions that increased rates of OSA, including pregnancy, end-stage renal disease, congestive heart failure, chronic lung disease and stroke. Regarding aggravation, the examiner stated, "felt by this examiner to show no permanent aggravation in the specifics for this case." The examiner also opined that OSA was not proximately due to, or the result of, the service-connected migraine headaches. The examiner stated the two medical conditions were not related and medical literature did not support a medical relationship. Regarding whether OSA was aggravated by migraine headaches, the examiner simply stated there was no medical plausibility for headaches impacting OSA. As noted by the Board in the April 2021 remand, the medical opinion is inadequate for several reasons and thus is afforded no probative weight. First, the opinion failed to evaluate aggravation under the appropriate legal standard, as the Court of Appeals for Veterans Claims (Court) held that permanent worsening was not a requirement for secondary service connection of a non-service-connected injury or disease. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Moreover, the rationale for the opinions were conclusory, rendering them opinions insufficient to resolve the appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a mere conclusion statement is insufficient to allow the Board to make an informed decision to the weight to be assigned to the medical statement). Finally, it was unclear if the examiner considered the medical treatises provided by the Veteran, as the examiner merely stated, "the medical literature does not support a medical relationship" and "there is no medical plausibility in the medical literature." Pursuant to the April 2021 remand, another VA medical opinion was obtained in July 2021. The examiner opined that the Veteran's OSA was less likely than not proximately due to, or aggravated by, his hypertension or renal disease based on current medical literature. In separate opinions, the examiner explained that OSA is a recurrent, functional collapse during sleep of the velopharyngeal and/or oropharyngeal airway, causing substantially reduced or complete cessation of airflow despite ongoing breathing efforts that leads to intermittent disturbances in gas exchange and fragmented sleep, of which hypertension and renal disease did not cause. The examiner conceded that the conditions may be found in those with OSA but were not the etiology of OSA since the sleep condition was due to a physical obstruction of the breathing pathway and OSA was known to worsen hypertension, not vice versa. The examiner then explained that the literature submitted by the Veteran did not suggest his OSA was worsened by the hypertension or CKD, and thus was not proximately due to, or aggravated by, the hypertension or renal disease. The VA examiner also found the Veteran's OSA was not proximately due to, or aggravated by, the service-connected migraine headaches. In separate opinions, the examiner explained the pathophysiology of OSA. The examiner also stated that the April 2008 clinical note which reported migraine headaches affected sleep suggested his headache prevented him from sleep due to pain, not that it caused his sleep apnea, and continued that medical literature supported that migraine headaches do not contribute or cause sleep apnea. The examiner also stated that the two conditions may be found together but migraine headaches were not the etiology of OSA since the sleep condition was due to a physical obstruction of the breathing pathway. Therefore, his migraine headaches did not cause or aggravate his OSA. The Board finds the July 2021 VA medical opinion highly probative. First, the examiner addressed the medical treatises cited by the Veteran and his representative, finding that the substance of treatises did not support a relationship between the current disability and service. The examiner also made note and addressed the April 2008 VA treatment record noting migraines impacting sleep. The examiner explained the pathophysiology of OSA and explained the medical literature did not support a relationship between the disabilities, causation nor aggravation. The Board assigns substantial probative weight to this highly probative medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008) (an opinion must be consistent with the medical evidence of record and contain clear conclusions with supporting data connected by a reasoned medical explanation). There are no competent medical opinions of record that are favorable to this claim. The Board does note that the October 2019 VA medical opinion listed medical conditions that increase rates of OSA, including end-stage renal disease. However, there is no evidence in the record that the Veteran's CKD is end-stage, only noting stage I, II, and III. See June 2010, June 2016, and March 2020 VA Treatment Records. In analyzing this claim, the Board also considered the Veteran's statements and the buddy statements, purporting to relate his currently diagnosed OSA to CKD with hypertension or alternatively migraine headaches. While the Veteran is competent to relate observable OSA symptoms, he, nor the authors of the buddy statements, are competent to relate a medically complex disability such as OSA to the service-connected disabilities, as they are not shown to possess the requisite medical knowledge, training, or experience to do so. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). The medical treatise articles submitted by the Veteran and his representative are afforded minimal probative weight. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Absent evidence demonstrating a causal relationship between this specific Veteran's OSA and CKD with hypertension or migraine headaches, the medical treatises are insufficient to establish secondary service connection for OSA as they are general in nature. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The Board also considered the two Board decisions cited by the Veteran in other veterans' cases. However, Board decisions are not precedential, and "previously issued Board decisions will be considered binding only with regard to the specific case decided." 38 C.F.R. § 20.1303. Furthermore, "each case presented to the Board will be decided on the basis of the individual facts of the case." Id. Notwithstanding, the two cases are distinct from the case of the Veteran. The first decision cited by the Veteran was in fact a remand for an additional medical opinion and did not grant service connection for sleep apnea and the second was service connected not as related to renal dysfunction or hypertension, but on a direct basis, as there was evidence the Veteran experienced sleep apnea in service. Therefore, the Board finds the submission of previous Board decision to be of no probative value, as they are not based on the facts specific to this Veteran's case. For these reasons, and based on the evidence of record, the Board finds that the weight of the competent, credible, and probative evidence is against the claim. The Board finds that a preponderance of the evidence is against the claim for secondary service connection, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.