Citation Nr: 21067190 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-09 044 DATE: November 3, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea was not manifested in service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2000 to July 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing; a transcript is of record. In September 2019, the Board denied service connection for obstructive sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (JMPR) that vacated and remanded the September 2019 decision as it related to service connection for obstructive sleep apnea. In November 2020 and May 2021, the Board remanded the claim for further development for compliance with the terms of the JMPR. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 1. Service connection for obstructive sleep apnea is denied. The Veteran contends that his obstructive sleep apnea began is related to active service, to include exposure to burn pits and oil fires. See June 2019 Board hearing transcript at 14; August 2021 VA examination. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a chronic disability resulting from undiagnosed illness or a medically unexplained chronic multisymptom illness that became manifest either during active military 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, 2026; and, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). VA treatment records show the Veteran is currently diagnosed with obstructive sleep apnea based on a sleep study conducted in February 2013. The question for the Board is whether the Veteran's disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records show the Veteran completed a post-deployment in October 2003 after returning from Iraq. The exam report reflects that he reported exposure to smoke from oil fire, smoke from burning trash and feces, and vehicle or truck exhaust fumes. The report also reflects that he reported wearing a gas mask and mission oriented protective posture (MOPP) gear during deployment. He denied breathing trouble but did report feeling tired after sleeping. In a January 2005 post-deployment exam after returning from Iraq, he noted exposure to smoke from burning trash or feces, JP8 or other fuels, and sand/dust. He denied breathing trouble but reported feeling tired after sleeping. Another post-deployment exam completed in May 2007 after returning from Kuwait and Iraq shows the Veteran reported exposure to smoke from oil fire but denied any breathing complaints. In the October 2006 separation report of medical history, he denied shortness of breath, but reported frequent trouble sleeping. Sleep apnea was not diagnosed in service and the Veteran was not referred for any respiratory evaluations. After service, a January 2013 VA record noted an assessment of "suspect sleep apnea," and the Veteran was referred for sleep study. A February 2013 private sleep study revealed a diagnosis of obstructive sleep apnea. In April 2014, the Veteran submitted lay statements from two former servicemembers with whom he served. Both servicemembers attest that he snored during service. The Board finds these statements competent and there is nothing obvious of record to impugn their credibility. In the December 2014, the Veteran was afforded a VA examination. The examiner, who reviewed his service records, post-service medical records, and lay testimony of snoring and fatigue in service, opined that his current obstructive sleep apnea did not manifest in service and is not related to service. The examiner's rationale was that symptoms of snoring and fatigue is not a diagnostic of sleep apnea, and sleep apnea was initially diagnosed many years after discharge from service. At the June 2019 Board hearing, the Veteran stated that he believes his sleep apnea developed while he was deployed in Iraq and reported exposure to burning oil wells and a burn pit. He testified that he did not wear a gas mask or breathing apparatus. He stated since he returned from Iraq in 2003, his roommates complained about him snoring very loudly. A negative nexus opinion was received in December 2020. The VA examiner stated that the Veteran was diagnosed with sleep apnea in 2013 and not during active service. He noted that the medical records and lay statements did not indicate the Veteran had obstructive sleep apnea before the formal diagnosis in 2013. He explained that snoring lies on a continuum between normal and abnormal, and that snoring without associated airway compromise, sleep disturbance, or other consequences was essentially normal. He noted that per medical literature, obstructive sleep apnea is a condition in which tissues in the throat occlude the passage of air during the relaxation of sleep. It was primarily a biomechanical condition whose primary risk factors are age (increasing from young adulthood), gender (male), obesity (the strongest risk factor), family history, and craniofacial abnormalities. He noted that the prevalence of obstructive sleep apnea progressively increases as the body mass index (BMI) and associated markers (e.g., neck circumference, waist-to-hip ratio) increase. He stated that in a prospective study of nearly 700 adults with four-year longitudinal follow-up, a 10 percent increase in weight was associated with a six-fold increase in the risk of incident obstructive sleep apnea; in a population-based study of over 1000 adults who underwent polysomnography, moderate to severe obstructive sleep apnea was present in 11 percent of men who were normal weight, 21 percent of those who were overweight (BMI 25 to 30), and 63 percent of those who were obese (BMI > 30). He stated that this scenario applied to the Veteran. Pursuant to the May 2021 Board remand, the qualifications of the December 2020 examiner were provided to the Veteran in June 2021. In May 2021, an addendum VA opinion was received. The examiner noted he reviewed the Veteran's VA records including service treatment records, medical exams, Board remands, June 2019 Board hearing transcript, and lay statements. The examiner noted he has medical board certification, surgical training, and more than twenty years of surgical practice, and that he was an active duty Army General Surgeon caring for active duty service members and military retirees. He noted the Veteran's case was the patient population he has been serving for the past thirteen years. He noted that as a General Surgeon, he was trained in bariatric surgery and have performed bariatric surgery on morbid obesity (MO) patients with MO-induced obstructive sleep apnea. He further noted that during his active service, both as an Army enlisted medic and Iraq battlefield surgeon, he had many months of experience sleeping in tents with multiple soldiers and has personal knowledge of snoring among healthy young male soldiers. The examiner noted that the Veteran's service treatment records are silent for any complaints suggestive of, much less specific for, obstructive sleep apnea. He stated that while an April 2015 noted the Veteran's snoring, primary snoring is commonplace among healthy young male soldiers and is not suggestive of obstructive sleep apnea in the absence of classic obstructive sleep apnea signs and symptoms. He also commented that while the Veteran noted in October 2003 and January 2005 post-deployment health assessments that he felt tired after sleeping, such was the case for everyone else. He explained that tent sleeping in a hot desert, on an unpadded Army cot, exhausted with long arduous duty, and having the sleep broken up with the coming and going of tent mates and explosion sounds, are not conducive to restful sleep. He commented those servicemembers who are deployed are denied unworried, comfortable, undisturbed sleep, and everyone has intermittent or chronic feelings of being tired after sleep. The examiner further explained that the Veteran's weight increased significantly after separation from service. He noted that a January 2013 VA treatment record first showed complaints of classic signs and symptoms for obstructive sleep apnea; he noted MO (weight of 271 pounds) was diagnosed and obstructive sleep apnea was suspected. The February 2013 sleep study confirmed the obstructive sleep apnea diagnosis. He stated that MO is the overwhelming number one cause of obstructive sleep apnea. He noted that the Veteran's obstructive sleep apnea is due to, or the result of, routine and commonplace MO that was of post-service onset. He commented that he fully concedes the Veteran's deployment respiratory exposures to multiple hazards to include oil fires, burn pits, fuel vapors, sand/dust, etc. He stated that while such inhaled hazards may induce pathologic chemical or allergic irritation of the respiratory tract lining, such superficial lining damage cannot possibly narrow or block the oropharynx. He stated obstructive sleep apnea is due to anatomic narrowing/blockage of the oropharynx, and that in cases of MO-induced obstructive sleep apnea, fat deposits in the soft-tissue of the oropharyngeal wall narrow the oropharynx, causing obstructive sleep apnea. He also explained that VA does not presumptively service-connect Persian Gulf Veterans for obstructive sleep apnea. He noted VA follows the scientific recommendations of the National Academies of Science (NAS) which is an independent, civilian, scientific organization that was tasked in 1991 by Congress to objectively evaluate all of the military, VA, and civilian medical data concerning Agent Orange (AO) associated conditions and, in 1998 similarly tasked to evaluate Gulf War/Southwest Asia (SWA) associated conditions. He noted that NAS has determined there is no association between Gulf War/SWA exposure and increased risk for the development of obstructive sleep apnea. He also stated that his review of the current obstructive sleep apnea literature is consistent with the NAS's position. The examiner opined that he cannot attribute the Veteran's obstructive sleep apnea to any Persian Gulf/SWA specific (e.g., burn pits) exposure event. He also noted the Veteran's obstructive sleep apnea does not entail a pattern of chronic disability related to an "undiagnosed illness" nor to a "diagnosed partially explained or unexplained chronic multisystem illness of partially known or unknown etiology." The examiner noted he has arrived at these conclusions after all due diligence in reviewing the relevant obstructive sleep apnea medical literature and civilian medical literature concerning irritable bowel syndrome, chronic multisymptom illness, and multiple chemical sensitivity syndrome. He noted he has reviewed the NAS Reports: Gulf War Veterans: Treating Symptoms and Syndromes (2001); Gulf War Veteran's Illnesses: NAS Report on Gulf War (1990-1991) and Health (April 2009); and serial Gulf War and Health Volumes and NAS updates through the most recent release. He noted he also reviewed the GAO Report (November 2009) Post-Deployment Health Reassessment Documentation Needs Improvement; the VA Compensation and Pension Training Letters of February 4, 2010 Adjudicating Claims Based on Service in the Gulf War and Southwest Asia; and April 26, 2010 Environmental Hazards in Iraq, Afghanistan, and Other Military Installations. He concluded that the Veteran's obstructive sleep apnea did not have its onset in service and is not otherwise related to service, to include as a result of his oil well and burn pit exposures. In August 2021, the Veteran underwent a VA contract examination for sleep apnea. He was diagnosed with OSA as of February 2013. He reported he began experiencing snoring as well as fatigue in 2003, and was eventually referred for sleep study which revealed sleep apnea. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained that the records do not reflect a diagnosis of sleep apnea while in service, and that snoring can be present in the absence of sleep apnea. She noted that while lay statements noted snoring may have indicated a sleep issue, the first documentation of sleep apnea was in a February 2013 private sleep study which revealed moderate obstructive sleep apnea. She also commented that peer-supported medical literature does not support an association of sleep apnea due to burn pits, and referred to the following excerpt from a National Center for Biotechnology Information (NCBI) article discussing the cause or aggravating factors of obstructive sleep apnea: Sleep apnea occurs when there is not enough space to accommodate sufficient airflow in a portion of the upper airway during sleep. When muscle tone is decreased, the result is a repetitive total or partial collapse of the airway. In children, the most common cause of obstructive sleep apnea is enlarged tonsils and/or adenoids. In adults, it is most commonly associated with obesity, male sex, and advancing age. Structural factors associated with OSA [obstructive sleep apnea] include: Micrognathia, retrognathia, Facial elongation, Mandibular hypoplasia, Adenoid and tonsillar hypertrophy, Down syndrome, Prader Willi syndrome, Inferior displacement of the hyoid. Also, Nonanatomic risk factors include: Central fat distribution, Obesity, Advanced age, Male gender, Alcohol use, Smoking, Use of sedatives, Supine sleeping position, Habitual snoring. After a review of the evidentiary record, the Board finds the preponderance of the competent medical evidence weighs heavily against finding entitlement to service connection for sleep apnea is warranted. The Veteran's service treatment records do not reveal a diagnosis of sleep apnea. His post-service treatment records reflect a diagnosis of obstructive sleep apnea in February 2013, which is over many years after separation from service. While the Veteran and his fellow servicemembers are competent to report symptoms in and since service, none of those individuals are competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing such as polysomnography. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the several VA medical opinions of record establish that the Veteran's sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including his reported in-service exposures. The December 2014 examiner explained that symptoms of snoring and fatigue is not a diagnostic of sleep apnea, and that sleep apnea was initially diagnosed many years after service. The December 2020 examiner noted that medical records and lay statements did not indicate obstructive sleep apnea before the formal diagnosis in 2013, and that snoring without associated airway compromise, sleep disturbance, or other consequences was essentially normal. He added that the prevalence of obstructive sleep apnea progressively increases as the BMI increase, which was the case for the Veteran. The May 2021 examiner similarly noted MO is the overwhelming number one cause of obstructive sleep apnea, and that the Veteran's obstructive sleep apnea is due to routine and commonplace MO that was of post-service onset. The August 2021 examiner noted that records did not reflect a diagnosis of sleep apnea in service, and that snoring can be present in the absence of sleep apnea. The supporting rationales of the opinions when read together are consistent with the facts found. The combined opinions are probative because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion to the contrary. Consequently, the Board finds the probative weight of the lay statements is outweighed by the probative weight of the objective medical evidence, including the VA opinions, which are based upon consideration of the Veteran's pertinent medical history and lay assertions. To the extent the Veteran contends his sleep apnea is related to service, he is not competent to provide such a determination because the issue is medically complex. He has not been shown to possess the necessary skills and training to render a complex medical opinion. Jandreau, 492 F.3d at 1377 n.4; Kahana v. Shinseki, 24. Vet. App. 428 (2011). His lay opinion is significantly outweighed by the medical opinions of record. The Veteran did serve in Iraq during the Gulf War, but his complaints have been attributed to a known clinical diagnosis, obstructive sleep apnea. For this reason, further consideration of service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted. In the absence of a competent, favorable nexus opinion, the preponderance of the evidence is against the claim. Accordingly, service connection for sleep apnea is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.