Citation Nr: 21068767 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-62 560 DATE: November 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected major depressive disorder is denied. Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to service-connected knee disorders is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that OSA began during active service, or is otherwise related to an in-service event, injury, or disease, to include as due to service-connected major depressive disorder. 2. The preponderance of the evidence is against finding that bilateral plantar fasciitis began during active service, or is otherwise related to an in-service event, injury, or disease, to include as due to service-connected knee disorders. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA, to include as secondary to service-connected major depressive disorder, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for service connection for bilateral plantar fasciitis, to include as secondary to service-connected knee disorders have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps (USMC) from March 1984 to March 1992. In November 2020, the Board most recently remanded the issues on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 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 service-connected disease or injury. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Entitlement to service connection for OSA, to include as secondary to service-connected major depressive disorder The Veteran contends that his obstructive sleep apnea is as a result of his active service. Specifically, the Veteran and his attorney assert that his obstructive sleep apnea was aggravated by his service-connected major depressive disorder. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a sleep condition. In support of the appeal, the Veteran's attorney submitted several medical journal articles regarding the relationship between obstructive sleep apnea and an acquired psychiatric disorder. An August 2014 private evaluation by an unknown medical professional submitted by the Veteran. That evaluation indicates that the Veteran suffered from chronic sleep impairment as a symptom of his psychiatric disorder. An opinion as to the nature and etiology of his sleep apnea was not provided. In April 2021, as required by the November 2020 Board remand, the Veteran attended a VA OSA examination. The examiner diagnosed OSA as of "2012". The Veteran stated that his sleep apnea started in 1987 in Japan with current shortness of breath symptoms. The examiner opined that the Veteran's OSA was less likely than not due to or the result of his active service. The rationale provided was: There is no documentation of snoring or sleep problems during military service. The veteran weighed 150# during service; he now weighs 240#. His sleep apnea is more likely due to his obesity. "In adults, the most common cause of obstructive sleep apnea is excess weight and obesity, which is associated with soft tissue of the mouth and throat. During sleep, when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked." (www.webmd.com) The examiner also opined that the Veteran's OSA was less likely than not proximately due to or aggravated by his service-connected major depressive disorder. The rationale provided was: While sleep apnea and depression may occur simultaneously in the same person, there is no proven link between the 2 conditions. The veteran weighed 150lbs during service; he now weighs 240lbs. His sleep apnea is more likely due to his obesity. "In adults, the most common cause of obstructive sleep apnea is excess weight and obesity, which is associated with soft tissue of the mouth and throat. During sleep, when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked." (www.webmd.com). The remaining evidence of records indicate continued complaints and treatment of OSA but no discussion as to its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The Board finds the April 2021 VA opinion of record the most probative evidence of record as to the etiology of the Veteran's OSA because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Further, the Board notes that a medical opinion stating otherwise is not of record. The Board considered the Veteran's lay assertions as to the etiology of his OSA. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his OSA. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the April 2021 VA opinion of record to be more probative in this regard. The examiner considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his OSA is related to service nor was it proximately due to or aggravated by his service-connected major depressive disorder. In conclusion, the weight of the evidence is against the claim for service connection for OSA. Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to service-connected knee disorders The Veteran contends that his bilateral plantar fasciitis is as a result of his active service. Specifically, the Veteran asserts that his bilateral plantar fasciitis is secondary to his service-connected bilateral knee disorders. STRs are silent for any complaints, treatment, or diagnosis of a foot condition. In June 2013, the Veteran attended a VA Foot Miscellaneous examination. The examiner diagnosed plantar fasciitis. The Veteran stated that he experienced moderate foot pain for over 15 years with a noted progression within the past 8 years. The examiner opined that the Veteran's foot condition was less likely as not caused by or a result the Veteran's knee degenerative joint disease. The rationale provided was: Risk factors for fasciitis are multifactorial. Possible risk factors for the development of plantar fasciitis include obesity, prolonged standing or jumping, flat feet, reduced ankle dorsiflexion, and heel spurs. Review of orthopedic literature, there is no medical evidence that correlates degenerative joint disease of one joint to the development of plantar fasciitis. In its May 2019 remand, the Board instructed the RO to schedule the Veteran for a VA examination for his claim for entitlement to service connection for bilateral plantar fasciitis. Specifically, the Board noted that the June 2013 VA examination did not address whether the Veteran's bilateral plantar fasciitis was aggravated by his service-connected bilateral knee disorders. The Veteran was afforded the directed VA examination in November 2019. At that time, the examiner found that the Veteran's bilateral plantar fasciitis was not aggravated beyond its natural progression by his service-connected bilateral knees. In this regard, the examiner stated that there was no objective findings or medical records found to show that plantar fasciitis was aggravated by the bilateral knee disorders and medical literature is lacking to strongly or convincingly support that knee disabilities can cause or aggravate plantar fasciitis. However, in a subsequent November 2020 Board remand, this opinion was found to be inadequate because the examiner applied the incorrect standard of review when providing said opinion. As a result, the Veteran was afforded an additional examination in April 2021. The examiner diagnosed bilateral pes planus and plantar fasciitis. The examiner opined it was less likely than not that the Veteran's plantar fasciitis was aggravated by his service-connected bilateral knee disorders. The rationale provided was: The veteran's plantar fasciitis is not due to his bilateral knee condition. His flat feet contribute to his plantar fasciitis. Structural foot problems like flat feet or very high arches can increase your chances of developing plantar fasciitis, as can a tight Achilles tendon; (this veteran has flat feet.) Other causes includes: being overweight or obese due to the increase in pressure on the foot. This veteran weigh 240 lbs and is obese.) Recreational factors like long-distance running and people with jobs that require prolonged periods of standing and walking, like a waiter or factory worker, have higher instances of getting plantar fasciitis. (1/6/2021 - www.medicinenet.com). The remaining evidence of records indicate continued complaints and treatment of a foot condition but no discussion as to its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The Board finds the June 2013 and April 2021 VA opinions of record the most probative evidence of record as to the etiology of the Veteran's foot condition because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Further, the Board notes that a medical opinion stating otherwise is not of record. The Board considered the Veteran's lay assertions as to the etiology of his foot condition. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his foot condition. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the June 2-13 and April 2021 VA opinions of record to be more probative in this regard. The examiners considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his foot condition is related to service nor was it proximately due to or aggravated by his service-connected knee conditions. In conclusion, the weight of the evidence is against the claim for service connection for a foot condition. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.