Citation Nr: 21068235 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-15 238 DATE: November 9, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a skin condition is denied. Entitlement to service connection for a gastrointestinal condition is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea did not have its onset in service, and has neither been caused nor aggravated by any service-connected disability. 2. The Veteran's skin conditions did not have onset in service, and are etiologically unrelated to in-service Agent Orange exposure. 3. The Veteran's diverticulosis did not have its onset in service, and has neither been caused nor aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a skin condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a gastrointestinal condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in January 2018, December 2018, and March 2021; it was remanded for development on each occasion, and now returns to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2018). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). VA regulations provide that for a Veteran who has been exposed to an herbicide agent during military service, service connection for certain diseases will be presumed. See 38 C.F.R. § 3.309 (e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acide; and picloram. See 38 C.F.R. § 3.307 (a)(6)(i). VA has already conceded herbicide agent exposure in the Veteran's case. The Board observes that none of the disabilities herein on appeal are listed as presumptive conditions in 38 C.F.R. § 3.309 (e). Nevertheless, service connection due to herbicide agent exposure is still available where the evidence demonstrates actual causation on an at least as likely as not basis. 1. Entitlement to service connection for sleep apnea The Veteran carries a current diagnosis of obstructive sleep apnea, and avers that the condition is etiologically related to service, to include as secondary to service connected disabilities including posttraumatic stress disorder (PTSD), diabetes, and/or heart disease. The Board observes that service records do not show any in-service manifestation of a sleep disorder, and the diagnosis of sleep apnea was made many years after separation from service. Additionally, the Veteran has not advanced cogent argument that the disability began in service. Thus, the Board finds that there is no evidence to support in-service incurrence of sleep apnea. The Veteran has maintained that his sleep apnea is etiologically related to service-connected disabilities, including PTSD. The record contains a February 2019 nexus opinion furnished by a VA examiner with whom the Veteran met that same month, explaining that risk factors apart from service-connected disability, including post-separation weight gain constitute the most likely explanation for the Veteran's sleep apnea, and that, summarily, the evidence does not suggest a service-related cause. Finding the opinion not altogether adequate, the matter was remanded for development. The VA examiner furnished a second opinion in June 2021, explaining that: "Obstructive sleep apnea (OSA) is a disorder that is characterized by obstructive apneas, hypopneas, and/or respiratory effort related arousals caused by repetitive complete or partial collapse of the upper airway during sleep... Well-defined risk factors for OSA include older age, male gender, obesity, and craniofacial and upper airway abnormalities. Potential risk factors include smoking, family history of snoring or OSA, and nasal congestion... The risk of OSA correlates well with the body mass index (BMI) [5,14]. In one study, a 10 percent increase in weight was associated with a six-fold increase in risk of OSA... Whether there is an increased prevalence of OSA in post-traumatic stress disorder is unclear. While rates of OSA have also been shown in some studies to be increased in patients with chronic health conditions such as congestive heart failure, lung disease, and ESRD, causality between these conditions has not been demonstrated. There is no known physiologic mechanism by which this Veteran's coronary artery disease, chronic kidney disease and hypertension, PTSD, diabetes mellitus with erectile dysfunction, diabetic peripheral neuropathy right lower extremity sciatic nerve, diabetic peripheral neuropathy left lower extremity sciatic nerve, tinnitus, or bilateral hearing loss could or would cause or worsen the upper airway obstruction characteristic of OSA either temporarily or permanently. Based on the medical data, this Veteran's [service-connected] conditions have no direct or causal association with OSA, nor do they aggravate the OSA. The 2005 article referenced in the March 2019 letter from Veteran's attorney was reviewed and concludes: 'Recent studies underscore the existence of a complex relationship between depression and OSA in terms of clinical presentation, underlying pathophysiology and treatment. It should incite the treating psychiatrist to be highly aware of a possibly underlying or coexisting OSA in depressed patients. Up to 20% of all patients presenting with a diagnosed depressive syndrome may also have OSA, and vice versa. This relationship might vary widely, depending on age, gender, AHI cut-off and general demographic and health characteristics of the population under investigation. Future clinical research in this area should specifically examine depressed patient populations, taking into account the different sub-type of mood disorders, and investigate a broader range of depressive symptomatology in OSA patients. Basic research should further investigate the causal relationship between depression and OSA, as well as the potential mechanisms by which both disorders may interact.' This, like many published articles since then, does NOT establish causality between the commonly comorbid conditions of depression and OSA. Furthermore, though both PTSD and OSA can cause sleep disturbances, the mechanisms underlying these disturbances are distinctly separate from each other (nightmares/insomnia vs upper airway obstruction), and one cannot, therefore, be said to worsen the other." The Board finds this opinion to be thorough, well-reasoned, fully explained, and in general accord with and uncontroverted by the other objective evidence of record, and thus, finds the opinion to be the most probative evidence of record on the question of etiology in this case. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his sleep apnea in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of sleep apnea is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran's diagnosed sleep apnea is related to active service, or that it has been caused or aggravated beyond its normal course of progression by service-connected disability. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for sleep apnea must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a skin condition The Veteran avers that he is beset by a skin disorder related to in-service herbicide agent exposure. The Board notes that such exposure has already been conceded in the Veteran's case, but that he does not have a diagnosis presumptively linked to such exposure; thus, the question before the Board is whether a current skin disorder is in fact etiologically linked to in-service exposure to herbicide agents. A VA examiner with whom the Veteran met in February 2019 indicated that there was no such etiological relationship, explaining that the Veteran's diagnoses of actinic keratoses, seborrheic keratoses, dermatitis, and basal cell carcinoma were not present during service or in its immediate wake, and that current medical literature does not support the proposed relationship between these conditions and herbicide agent exposure. A June 2021 VA examiner's opinion addresses the Veteran's contention that "[h]yperpigmentation and higher incidence of cutaneous malignancies in moderate-high PCB- and dioxin exposed individuals," including the Veteran, explaining that the study cited by the Veteran, through his representative, was limited to 92 former employees of a transformer recycling company, which concluded only that the "cutaneous malignancies found in the workers might be associated with PCB and dioxin exposure, warranting further investigation on larger cohorts." Thus, while the study suggested that further research on the matter was warranted, it did not in itself establish any firm etiological link between herbicide agent/dioxin exposure and cutaneous malignancies of the type with which the Veteran has been diagnosed. To this explanation the examiner added that the Veteran's skin manifestations were initially noted several decades after separation, and that by their presentation, there was no basis to conclude there was any etiological link to any aspect of service, including herbicide agent exposure. Rather, medical literature indicates sun exposure, skin tone, and advancing age are the most prominent risk factors for the skin conditions present in the Veteran's case, and are the most likely causative factors here. The Board finds the 2021 VA examiner's assessment constitutes the most probative evidence of record on the question of causation in this case, as it is thorough, reasoned, and uncontroverted by any other objective evidence in this case. Thus, while the Board is sympathetic to the Veteran's contentions, it cannot afford probative weight to his assertions with respect to the etiology of his skin conditions While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his conditions. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of his skin conditions is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. Accordingly, the claim for service connection for a skin disorder must be denied. 3. Entitlement to service connection for a gastroesophageal condition The Veteran carries a current diagnosis of diverticulosis, characterized by the presence of diverticula in the gut, a series of sac-like protrusions of the colonic wall. The Veteran has averred that the condition is related to service, or in the alternative, to service-connected disabilities including PTSD, hypertension, or diabetes. The record indicates that the Veteran, by his own acknowledgment, began experiencing gastrointestinal symptoms in 2011-2012, including constipation with diarrhea, bloating, and abdominal pain. A VA examiner with whom he met in February 2016 confirmed the diagnosis of diverticulosis, but opined that the evidence did not support onset in service as symptoms appeared many years after separation, and that there was insufficient evidence to support any etiological link to any other condition, including service-connected disability. A January 2019 VA examiner agreed, noting that diverticulosis is primarily age-dependent, but did not furnish an adequate opinion as to secondary service connection. Finally, a June 2021 VA examiner explained that age and lifestyle factors were the main cause of diverticulosis across the population, with no evidence of an etiological link, to include by way of causation or aggravation, between the condition and any of the Veteran's service-connected disabilities. Moreover, in response to a notation that the Veteran's experienced gastrointestinal pain and indigestion at the time of enlistment, the examiner stated that there is no objective evidence that diverticulosis had its onset in service or was present at enlistment. In support of this finding the Board notes that service records are silent for ongoing gastrointestinal complaints, and the Veteran did not seek or receive treatment or a diagnosis related to the same for many years after separation. As for secondary service connection, the examiner confirmed that "there is no physiologic basis by which [the Veteran's service-connected] conditions would or could have contributed to progression beyond the natural history of this condition." The Board accepts the June 2021 opinion as the most probative evidence of record on the question of the etiology of diverticulosis in this case, as it is thorough, reasoned, and in accord with the objective evidence of record. Thus, while the Board is sympathetic to the Veteran's contentions, it cannot afford probative weight to his assertions with respect to the etiology of his diverticulosis. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of diverticulosis is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran's diagnosed diverticulosis is related to active service, or that it has been caused or aggravated beyond its normal course of progression by service-connected disability. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for diverticulosis must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.