Citation Nr: 21068477 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-52 361 DATE: November 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected bronchial asthma, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's OSA is secondary to service-connected bronchial asthma, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In May 2021, the Board granted the petition to reopen the claim for service connection for a lumbosacral spine disability and remanded the matter for further development. In addition, the claim for entitlement to service connection for OSA was remanded to obtain, among other things, an addendum VA medical opinion. An opinion was obtained in August 2021. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). During the remand status, a July 2021 rating decision granted service connection for a lumbosacral spine disability with degenerative disc disease and radiculopathy of the bilateral lower extremities. As such, there remains no controversy for the Board in these matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Entitlement to service connection for OSA. The Veteran contends that his OSA is proximately due to and aggravated by his service-connected bronchial asthma. See Hearing Transcript at 12-14 (June 2020) The Board concludes that the preponderance of the evidence is against finding that the Veteran's OSA began during service, is otherwise related to an in-service injury or disease, or, that it is secondary to his service-connected bronchial asthma. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 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 established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability 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(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Here, the Veteran's service treatment records (STRs) reflect no complaints or findings related to a sleep disorder or OSA. It is noted that the Veteran does not claim, nor does the record reasonably raise, the issue of entitlement to service connection for OSA on a direct basis. Post-service VA medical records reflect that a sleep study was requested in October 2017 for the Veteran's long history of daytime fatigue. See CAPRI (January 2018). The record shows that in December 2017, the Veteran was diagnosed with OSA confirmed via sleep study conducted at Saint Francis Hospital in Vinita, Oklahoma. Id. A VA examination report, dated in February 2018, reflects a diagnosis of OSA based on the December 2017 sleep study. The medical opinion concluded that the Veteran's OSA is less likely than not proximately due to or the result of the Veteran's service-connected bronchial asthma. The supporting rationale for the conclusion was that sleep apnea is due to obstruction in the upper airway rather than the lower airways that are affected by asthma. The opinion further states that asthma is a distinctly different pathology that involves immune mediated reactive lower airways compared to OSA which is caused by a strictly mechanical obstruction of the upper airway. The Board finds that the February 2018 VA medical opinion is inadequate only to the extent that it did not address the aggravation prong of secondary service connection as it failed to discuss why the Veteran's OSA was not worsened beyond its normal progression by his asthma. See El-Amin v. Shinseki, 26 Vet. App. 136 (2012); see also Atencio v. O'Rourke, 30 Vet. App. 74, 8991 (2018) (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts). Similarly, a June 2021 VA medical opinion concluded that the Veteran's OSA is not secondary to his service-connected bronchial asthma. With respect to the causation prong of secondary service-connection, the opinion concluded that the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected bronchial asthma. In support of this conclusion, the VA examiner, like the February 2018 VA examiner, stated that OSA and asthma are separate pathophysiologic entities that affect different anatomical areas. Specifically, asthma is due to bronchoconstriction in the lung themselves while OSA is due to upper airway obstruction with associated apneic episodes. Further, the examiner reported that accepted medical knowledge and practice (e.g., Cecil's Textbook of Internal Medicine), indicates there is no anatomic or physiologic mechanism by which asthma can impact OSA, to include causing or aggravating the disease. The opinion, citing to the Mayo Clinic website, states: "It is, therefore, important to identify this dual, rather complex, association between asthma and OSA. There is more than enough evidence that OSA is not uncommon among asthma patients; however, it is poorly investigated. OSA is largely overlooked in patients having uncontrolled asthma. Patients with poor asthma control despite optimal recommended management need to be screened for possible OSA so as to reduce treatment cost, morbidity, and improved quality of life in such patients. Future research on this "alternate overlap syndrome" will further improve our understanding of this topic with some more useful insights for better management strategies." Next, the June 2021 VA medical opinion concludes that it is also less likely than not that OSA has been aggravated beyond its natural course due to any cause, including service-connected bronchial asthma. The Board notes that the Veteran has been awarded service connection for bronchial asthma from March 23, 1988, the date after service separation. See Rating Decision (December 1988). The rationale provides that the Veteran was not diagnosed with OSA until December 2017, he did not specify any complaints and there is no objective evidence of record representing aggravation. The opinion noted that the Veteran's response to CPAP treatment is excellent with an AHI below the threshold for diagnosis while on CPAP (4/30/18) and the Veteran's CPAP values are objectively unchanged through 2019. However, the examiner indicated that changes in CPAP or BiPAP settings are common in the natural course of OSA and would not necessarily represent aggravation beyond the natural course. In support of the claim, a favorable medical opinion was submitted by a VA primary care physician, Dr. T.S., in October 2018. See Medical treatment Record Government Facility (October 2018). Dr. T.S. opined that "There is an abundance of literature and research showing that asthma increases one's chances of developing obstructive sleep apnea and in my opinion this Veteran's asthma has set him up for obstructive sleep apnea." The Board notes that the medical opinion is not accompanied by any medical literature and research. The Board finds the opinion is inadequate because it is conclusory in nature and makes a general reference to medical literature and research without providing any reasoned medical rationale relating the facts of the Veteran's case to any specific medical literature and research. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). Further, the opinion does not reflect a conclusion or reasoned medical rationale on the question of whether the Veteran's OSA is aggravated beyond its natural progression by service-connected bronchial asthma. See Allen v. Brown, 7 Vet. App. 439 (1995). As such, the Board finds the opinion inadequate to support a grant of the Veteran's claim. The Board has further considered the web-based articles submitted by the Veteran. See Correspondence (September 2021). 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); see also Sacks v. West, 11 Vet. App. 314 (1998). Here, the WebMD article entitled "Asthma Tied to Higher Risk of Sleep Apnea" discusses a study in which asthma patients had an almost 40 percent greater risk for sleep apnea than asthma-free participants. However, the article also concludes that while the study could point to an association between asthma and sleep apnea, it could not prove a cause-and-effect relationship. Additionally, the article entitled "Is There a Relationship Between Asthma and Sleep Apnea and Snoring?" is general in nature and indicates that studies suggest that people with asthma are at an increased risk to develop sleep apnea. The article also suggests that sleep apnea can become worse due to being overweight and that asthma can be become worse due to pet dander, dust mites and other allergens. Furthermore, the October 2018 favorable medical opinion from Dr. T.S. does not discuss these articles-either generally or in the context of the Veteran's OSA. Thus, the Board concludes that the evidence is insufficient to establish a favorable medical nexus opinion on the relationship between the Veteran's OSA and his service-connected bronchial asthma. The Board acknowledges the Veteran's belief that his OSA is caused or aggravated by his asthma. However, while the Veteran is competent to describe observable symptomology (snoring, fatigue, shortness of breath, etc.), he is not competent to opine on the etiology of his OSA, including whether it is caused or aggravated by asthma, because he lacks the requisite medical expertise to formulate a medical opinion. These are complex medical determinations beyond the range of experience or understanding of a lay person. Indeed, OSA and bronchial asthma are intricate and complex matters that require specialized medical education and knowledge, regarding the complex processes involved in the development of respiratory disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, the Board finds that the Veteran's opinion linking his OSA to his asthma has no probative value in this matter. The Board also notes the Veteran testified that he has asthma flares-up, which his representative then argued could cause increased symptomatology of OSA. See Hearing Transcript at 13 (June 2020). However, the Board finds these statements not credible as they are contradicted by VA treatment records reflecting that the Veteran's asthma is stable. See e.g., CAPRI (October 2017). Furthermore, the June 2021 VA examiner noted that the evidence was negative for any complaints related to asthma. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board assigns greater probative value to the June 2021 VA medical opinion, and the February 2018 VA medical opinion to the extent that it adequately addressed the causation prong of secondary service connection. The June 2021 medical opinion, in particular, was prepared by a skilled, neutral, medical doctor and was based on a thorough review of the claims file, relevant medical evidence, and related medical literature. Furthermore, it was supported by a comprehensive rationale that considered the Veteran's lay statements and cited to specific medical evidence in the claims file. Therefore, it is highly probative because it contains separate and clear findings and rationales regarding causation and aggravation and, included explanations for the conclusions reached based on consideration of the pertinent evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Lastly, the Board acknowledges the representative's argument suggesting the February 2018 VA examiner, a doctor of osteopathy, does not have the same experience, training, and credentials as a medical doctor to provide a competent opinion on the link between OSA and asthma. See Hearing Transcript at 15 (June 2020). Thus, the basic assertion is that the February 2018 VA examiner was not as qualified as a medical doctor to render an opinion. Here, the Board finds no reason to question the medical knowledge, training, or expertise of the February 2018 examiner. See Francway v. Wilkie, 930 F. 3d 1377 (2019) (explaining the requirement that the Board make factual findings regarding the qualifications of an examiner when such credentials are called into question by an appellant). The February 2018 examination report reflects the clinician is a doctor of osteopathic medicine with a specialty in occupational medicine. The Board observes that although she is not a pulmonologist, she is nevertheless a doctor. However, it is also noted that Dr. T.S., the VA medical doctor who provided the favorable nexus opinion discussed above, is an internist who has provided limited, annual evaluations and treatment plans with respect to the Veteran's general medical care. The Board further notes that it is not necessary that VA examinations be conducted by a medical doctor or specialist in the particular field of the Veteran's claimed disability. VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563 (2007). In view of the adequate, albeit incomplete, medical opinion rendered by the February 2018 examiner, the fact that she is not a medical doctor does not disqualify the opinion. Given the above, the Board finds the preponderance of the evidence is against finding that the Veteran's OSA had its onset in service, is otherwise related to service, or is proximately caused or aggravated by his service-connected bronchial asthma. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.