Citation Nr: 21070140 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-32 812 DATE: November 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected coronary artery disease, is denied. Entitlement to service connection for bilateral lower extremity peripheral vascular disease, claimed as secondary to service-connected coronary artery disease, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea is due to or aggravated by the Veteran's service-connected coronary artery disease. 2. The preponderance of the evidence is against finding that the Veteran's peripheral vascular disease is due to or aggravated by the Veteran's service-connected coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected coronary artery disease, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for bilateral lower extremity peripheral vascular disease, claimed as secondary to service-connected coronary artery disease, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service between September 1967 and May 1969. This matter comes on appeal before the Board of Veterans Appeals (Board) from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for obstructive sleep apnea and peripheral vascular disease of the left and right lower extremities. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2021. A transcript of that hearing has been associated with the record. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). 1. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected coronary artery disease The Veteran contends that his current diagnosis of obstructive sleep apnea is secondary to his service-connected coronary artery disease (CAD). The Board notes that the Veteran's service treatment records are silent as to complaints of or treatment for a sleep disability. Nor has the Veteran argued his sleep apnea is related to service on a direct basis. The Veteran was diagnosed with obstructive sleep apnea (OSA) in 1996 and uses a continuous positive airway pressure breathing assistance device (CPAP). Thus, the evidence shows that the Veteran has a current diagnosis of OSA, and the question for the Board is whether the Veteran's OSA was caused or aggravated by his service-connected CAD. The analysis will therefore turn to secondary service connection. At the Veteran's initial consult for sleep apnea in May 1996, the Veteran reported severe fatigue, loud snoring, and apneas witnessed by his wife. His wife reported an increase in snoring intensity over the past five years. It was noted the Veteran had gained 50 pounds over the past five years, drank about one-half case of beer per week, and smoked one pack of cigarettes per day. On examination, he was noted to have "boggy, edematous, narrow nasal passages," a small pharynx, a large tongue, and an edematous uvula. His neck was noted to be large and thick and his abdomen obese. The physician noted they discussed the association between weight and alcohol consumption and sleep apnea, thus indicating that the Veteran's obesity and alcohol use were risk factors. A sleep study was immediately scheduled. The Veteran underwent a sleep study for evaluation of OSA in May 1996. The record indicates "nasal/oral airflow, chest wall movement, abdominal wall movement and oxygen saturation were monitored for apnea and hypopnea assessment." The Veteran demonstrated 342 respiratory events, predominately consisting of obstructive sleep apneas and hypopneas an average of 61 per hour. Additionally, "severe arterial oxygen desaturations ... were noted in association with sleep disordered breathing events." A nasal CPAP trial was recommended along with weight loss. The Veteran subsequently underwent additional sleep studies in July 1996 and March 2017. In an August 2019 VA examination, the examiner opined that it is less likely than not that the Veteran's sleep apnea is proximately due to or the result of the Veteran's CAD, and less likely than not that the Veteran's sleep apnea was aggravated beyond its natural progression by the Veteran's CAD. The examiner noted he had discussed the claim with Dr. S.K., the Chief of the VA Eastern Regional Sleep Center and a nationally recognized expert, who indicated there was no significant evidence in his experience or in the expert medical literature that the Veteran's OSA would be caused by or aggravated beyond its natural progression by his CAD. The examiner also noted the Veteran has normal cardiac function, with a normal left ventricular ejection fraction, which measures the percentage of one's blood that the heart pumps out of its left ventricle (its main pumping chamber) with each heartbeat. The examiner noted that if the Veteran had congestive heart failure with a low ejection fraction (which he does not), that condition could aggravate central sleep apnea (but would not affect obstructive sleep apnea, a distinct condition from central sleep apnea). The examiner noted that the Veteran had no central apneas during his March 2017 sleep study, and no congestive heart failure. The Board notes that there is no medical evidence, nor any medical nexus opinion, indicating the Veteran's OSA is due to, the result of, or aggravated by his CAD. The Veteran's attorney raised two arguments at the Board hearing with respect to the Veteran's OSA. First, he appeared to argue the VA examiner's opinion was inadequate because the examiner consulted with another physician and subject-matter expert who had not examined the Veteran. The Board finds no reason to discount the opinion of a medical examiner who consulted with a specialist on a substantive medical issue within that specialist's area of expertise. While the examiner may have gained additional medical insight from consulting with a specialist, the examiner still formed his opinion based on a comprehensive review of the file and examination of the Veteran. He considered the Veteran's specific circumstances, including his normal ventricular ejection fraction and existence of obstructive, rather than central, sleep apnea. He evaluated the circumstances under which a heart condition could aggravate sleep apnea, and addressed why those circumstances were not met. The medical opinion was based on the clinician's examination of the Veteran, review of his file, and consultation with the subject matter expertand provided a detailed rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Second, the Veteran's attorney contended that a May 1996 letter from Dr. R.S. to Dr. J.S. indicated "life threatening oxygen levels" in noting oxygen desaturation during sleep, which the attorney argued was attributable to CAD, and which he contended was a theory unaddressed by the VA examiner. The attorney stated, "there is literature I have seen that correlates the oxygen desaturation with coronary artery disease." However, neither the Veteran nor his attorney cited or provided any specific literature to explain or elaborate on this assertion. Further, while the attorney is correct that the May 1996 letter (and the sleep study it addresses) noted severe oxygen desaturation at possibly "life-threatening" levels, the records also note these oxygen desaturations were directly associated with the hypopneic respiratory events and were sufficiently remedied with the nasal CPAP, which indicates they are due to the sleep apnea itself and are not a separate issue related to CAD. Indeed, both the 1996 sleep studies indicate that oxygen saturation was measured in order to assess apneas and hypopneas, and the 2017 sleep study specifically defines hypopneic events to include oxygen desaturation at four percent or greater. There is no basis to conclude that the Veteran's noted oxygen desaturations were due to anything other than his OSA, and no plausible theory raised by the evidentiary record that the VA examiner purportedly failed to address. Rather, the evidentiary record directly reflects that the oxygen desaturations are correlated with the sleep apnea respiratory events, and are resolved by the use of a CPAP to treat that condition. The Board finds that the opinion of the August 2019 VA examiner is the most probative evidence of record as to the etiology of the Veteran's sleep apnea. The examiner found no objective evidence to support that the Veteran's OSA was caused or aggravated by his service-connected CAD. The VA examiner's opinion was based on the specific facts of this case as presented in the record. The examiner reviewed the record and provided appropriate rationale that was factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board finds that the evidence is insufficient to establish a relationship between the Veteran's current OSA and his period of service, to include his service-connected CAD. Therefore, service connection for OSA is not warranted. 2. Entitlement to service connection for bilateral lower extremity peripheral vascular disease, claimed as secondary to service-connected coronary artery disease The Veteran contends that his current diagnosis of bilateral lower extremity peripheral vascular disease, also known as peripheral artery disease (PAD), is secondary to his service-connected CAD. The Board notes that the Veteran's service treatment records are silent as to complaints of or treatment for peripheral arterial disease or symptoms. Nor has the Veteran argued his PAD is service-connected on a direct basis. The evidence shows that the Veteran has a diagnosis of PAD and has a history of sclerotic lower extremity arteries requiring stenting in 2009 and 2014. Thus, the question for the Board is whether the Veteran's PAD was caused or aggravated by his service-connected CAD. The analysis will therefore turn to secondary service connection. In an August 2019 VA examination, the examiner opined that it is less likely than not that the Veteran's PAD is proximately due to or the result of the Veteran's service-connected CAD, and less likely than not that the Veteran's PAD was aggravated beyond its natural progression by the Veteran's CAD. The examiner noted that while PAD and CAD share common risk factors, including smoking and diabetes, there was no evidence that the Veteran's CAD caused the PAD. As to aggravation, the examiner again stated that if the Veteran had congestive heart failure, it could cause reduced blood flow to the lower extremities and thus would aggravate PADhowever, there was no evidence of congestive heart failure on echocardiogram, and as reflected by the normal ejection fraction. The Veteran testified at the Board hearing that he does not smoke, which is a common risk factor for PAD. The Veteran's attorney emphasized that the Veteran did not have any risk factors for PAD, including smoking or diabetes as had been listed by the VA examiner. However, the VA examiner appeared to merely list those as examples in stating that CAD and PAD share risk factors, to indicate that one condition was not necessarily causative of the other. Moreover, although the Veteran denied smoking at present, multiple medical records reflect decades of smoking history which could have contributed to the condition. For example, the May 1996 sleep study consultation states the Veteran smoked one pack per day. A VA medical treatment record in September 2004 states a history of smoking with a 50 pack-year history, and VA medical treatment records in November 2004 and January 2005 reflect the Veteran reported smoking 14-15 cigarettes per day and was not interested in quitting. It is unclear when the Veteran quit smoking. The Veteran's March 2019 extremity arterial study, which indicated the diagnosis of peripheral vascular disease, listed his risk factors as, "previous smoking, obesity, hypertension, hyperlipidemia." The Veteran's history of smoking was thus a risk factor associated with the development of PAD. Additionally, while the Veteran testified at the hearing that his cardiologist, Dr. M., had "told [him] that [his] peripheral artery disease is related to his coronary artery disease," this assertion is not supported by any of Dr. M.'s records or those of any other medical provider associated with Doylestown Hospital. Rather, medical records in October 2014 and June 2016 reflect the Veteran's risk factors include obesity, hypertension, and hyperlipidemia. Dr. M. also highlighted the Veteran's history of noncompliance in the October 2014 record. The record from July 2008, when the Veteran underwent his first stenting due to total occlusion of the right superficial femoral artery, also reflects normal left ventricular function and normal left ejection fraction and states his coronary atherosclerosis was nonobstructive. The "recommendations" after that stenting procedure included risk factor adjustment. Subsequent indicated testing has continued to show normal left ventricular function, indicating the CAD is not the cause of impaired blood flow in his extremities. The Board finds that the nexus opinion of the August 2019 VA examiner is the most probative evidence of record as to the etiology of the Veteran's bilateral PAD. The examiner found no objective evidence to support that the Veteran's PAD was caused by or aggravated by his service-connected CAD. The Board notes that there is no medical evidence in the Veteran's record, and no nexus opinion, that would indicate the Veteran's bilateral PAD is caused by or aggravated by his CAD. The VA examiner's opinion was based on the specific facts of this case as presented in the record. The examiner reviewed the record and provided appropriate rationale that was factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board finds that the evidence is insufficient to establish a relationship between the Veteran's current PAD and his period of service, to include his service-connected CAD. Therefore, service connection for PAD is not warranted. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea and bilateral peripheral vascular disease, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.