Citation Nr: 21071180 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-48 191 DATE: November 30, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals of a deviated septum repair, is denied. FINDINGS OF FACT 1. The Veteran's current obstructive sleep apnea did not manifest during active service and is not otherwise causally or etiologically related to his active service. 2. The Veteran's current obstructive sleep apnea was not caused or aggravated by his service-connected residuals of a deviated septum repair. CONCLUSION OF LAW Sleep apnea was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1111, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from February 1986 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in April 2019. A transcript has been associated with the record. The case was remanded for further development in August 2019. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has 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 may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Sleep apnea is not an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service, and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). A disability may also be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for sleep apnea is not warranted. The Veteran's service treatment records are negative for any complaints, treatment or diagnosis of sleep apnea or symptoms thereof. The Veteran elected not to undergo a medical examination before separation. Following his military service, the Veteran was first diagnosed with obstructive sleep apnea in September 2014, following an overnight polysomnogram. Based on the foregoing, the Board finds that the Veteran's sleep apnea did not manifest in service. In addition to the lack of evidence showing that sleep apnea manifested during active duty service, the evidence of record does not link any current diagnosis to the Veteran's military service or to a service-connected disability. Indeed, there is no medical opinion relating the Veteran's current obstructive sleep apnea to his military service or to a service-connected disability. Private medical records dated in February 2015 indicate that the Veteran's body habitus is likely a large contributing factor to his sleep apnea; the Veteran attributed his weight gain of approximately 40 pounds in the last year to his underlying mood disorder. The Board notes that he is not service-connected for a psychiatric disability. It was also noted that his nasal obstruction was discussed, but the physician thought that it was likely a small contributing factor, and his diagnoses included chronic rhinitis at that time, which is also not service-connected. The Veteran was afforded a VA examination in June 2015 in connection with his claim. The examiner opined that his sleep apnea is less likely than not proximately due to or the result of his service-connected residuals of a deviated septum repair. The examiner stated that it was not medically plausible and explained that obstructive sleep apnea is due to a temporary airway collapse at an anatomic level much lower than the nasal septum and turbinates. An additional VA medical opinion was obtained in August 2016. The examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected disability. She observed that the Veteran had a deviated nasal septum during service that was successfully repaired. She reviewed the more recent treatment records and noted that the Veteran had chronic rhinitis, but not a currently deviated septum. She also considered medical literature and indicated that the strongest risk factor for obstructive sleep apnea is obesity and that the Veteran's BMI (body mass index) at the time of his diagnosis was 52, which put him at a very high risk for obstructive sleep apnea. Nevertheless, during the April 2019 Board hearing, the Veteran and his representative clarified that they were claiming service connection for sleep apnea on both a direct and secondary basis. However, the VA examiners did not address direct service connection or the aggravation prong of secondary service connection. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In addition, the Veteran submitted additional medical literature, which the examiners did not have the opportunity to review. Therefore, the Board determined that an additional medical opinion was needed. Following the remand, an additional VA examination was performed in February 2020. The examiner noted the diagnosis of obstructive sleep apnea in 2014. The Veteran reported daytime hypersomnolence and significant weight gain in service, which he felt was partially responsible for his sleep apnea. He reported that his condition has improved with the use of his CPAP device. The examiner opined that his sleep apnea is less likely than not related to military service. He explained that, although the Veteran reported significant weight gain during service, physical examinations documented a weight of 230 pounds in 1985 and 238 pounds in October 1988, indicating a weight gain of only eight pounds from pre-service until four months before discharge. Conversely, his weight was 360 pounds in 2014, indicating a weight gain of 122 pounds from 4 months prior to discharge until 2014. Therefore, even accepting the premise that his weight gain is primarily responsible for his sleep apnea, it cannot be argued that it occurred primarily during service. The Board further notes that that obesity cannot qualify as a disease or injury or as an in-service event to warrant service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). The February 2020 VA examiner also opined that the Veteran's sleep apnea is less likely than not either caused by or aggravated by his service-connected residuals of a deviated septum repair. The examiner explained that the nasal septum and contiguous anatomy are essentially immobile, somewhat rigid structures which remain unchanged with postural changes, such as those occurring during sleep, and there is not a feasible mechanical means for this to cause or aggravate the Veteran's sleep apnea. The examiner considered the medical literature provided by the Veteran indicating that a deviated septum could cause sleep apnea. However, the examiner noted that the Veteran's deviated septum was repaired and that the articles did not address whether residuals of a deviated septum repair could worsen sleep apnea. There was an additional article regarding sleep apnea developing postoperatively; however, this was after bimaxillary surgery and not treatment of a deviated nasal septum. The examiner noted that the remaining submitted articles are related to nonservice-connected rhinitis and not sleep apnea. The examiner stated that neither the service treatment records, nor the medical literature submitted by the Veteran support service connection for sleep apnea secondary to service-connected residuals of a deviated septum repair. The Board has also considered the Veteran's statements that his sleep apnea is secondary to his service-connected residuals of a deviated septum repair. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his current sleep apnea, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset, other risk factors, and the internal processes involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds that the specific, reasoned opinions of the VA examiners are of greater probative weight than the Veteran's general lay assertions in this regard. The examiners reviewed the claims file, considered the Veteran's own reported history and assertions, and relied on their own training, knowledge, and expertise to form their opinions. Their opinions were also supported by clear rationale and considered the medical literature, including the medical research articles submitted by the Veteran. Based on the foregoing, the Board finds that the Veteran's sleep apnea did not manifest in service, is not causally or etiologically related to his military service, and is not secondary to his service-connected residuals of a deviated septum repair. Accordingly, the claim for service connection for sleep apnea is denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.