Citation Nr: 21071507 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-02 768 DATE: November 30, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection, to include a secondary basis, for a dental disability is denied. REMANDED Entitlement to a compensable rating for residuals of a maxillary fracture with sinusitis is remanded. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea did not originate in service or until years thereafter and is not otherwise etiologically related to service, to include on a presumptive basis. 2. The Veteran's dental disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for entitlement to service connection, to include a secondary basis, for a dental disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to January 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a hearing before a Veterans Law Judge but withdrew his request for such a hearing in an October 2021 letter. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). For Veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under the applicable provisions, an undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multi symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, and any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, which is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). The Secretary has determined that certain infectious diseases, not at issue here, warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). 75 Fed. Reg. 59,970 (Sept. 29, 2010); 75 Fed. Reg. 61,356, Oct. 5, 2010; 75 Fed Reg. 61,997 (Oct. 7, 2010) (to be codified at 38 C.F.R. § 3.317 (c)-(d)). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). 1. Entitlement to service connection, to include on a presumptive basis, for obstructive sleep apnea The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis related to a sleep or respiratory disability. The Veteran participated in a private sleep study in July 2013. The sleep study showed evidence of obstructive sleep apnea syndrome and the Veteran was diagnosed with obstructive sleep apnea. The Veteran was afforded a VA examination for his sleep apnea in May 2014. The VA examiner noted a diagnosis of obstructive sleep apnea. The VA examiner noted that the Veteran required the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. The Veteran did not currently have any findings, signs, or symptoms attributable to sleep apnea. The VA examiner noted that a sleep study was conducted in July 2013 and confirmed a diagnosis of obstructive sleep apnea. The Veteran was afforded a Gulf War VA examination in June 2015. The VA examiner noted that the Veteran had a respiratory condition due to sleep apnea. The VA examiner determined that there were no diagnosed illnesses for which no etiology was established. The Veteran was also afforded an in-person VA examination for his sleep apnea in June 2015. Polysomnogram reviewed The VA examiner noted a diagnosis of obstructive sleep apnea diagnosed in July 2013. The VA examiner noted that a July 2013 sleep study confirmed the diagnosis of sleep apnea. The Veteran reported participating in activities including gardening and walking one mile, 5 times a week. The Veteran reported sleeping from midnight to 9 o'clock in the morning, sometimes sleeping through the night, and sometimes waking due to anxiety, teeth grinding, snoring, or difficulty breathing. The VA examiner noted that the Veteran had remote use of tobacco. The VA examiner opined that the Veteran's obstructive sleep apnea was a disease with a clear and specific etiology and diagnosis. The VA examiner explained that the Veteran's obstructive sleep apnea was caused by narrowing of the oropharynx during sleep and was not due to a specific exposure event during service in Southwest Asia. Additionally, the Veteran's obstructive sleep apnea was less likely than not due to his left maxillary sinus fracture because his fracture had healed. Additionally, the maxillary sinus was not part of the oropharynx, and did not participate in air exchange during sleep. The Veteran was afforded another VA examination for his sleep apnea in August 2016. The VA examiner noted a diagnosis of obstruction sleep apnea diagnosed in 2013. A sleep study was performed in 2013 which revealed moderate obstructive sleep apnea. The Veteran reported that his condition began in 2013 and that he was diagnosed with obstruction sleep apnea in 2015 after an evaluation for snoring. The Veteran's condition had improved with the use of a continuous positive airway pressure (CPAP) machine. The Veteran did not have any current findings, signs, or symptoms attributable to sleep apnea. The VA examiner determined that the Veteran's sleep apnea did not impact his ability to work. The VA examiner determined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner instead determined that the Veteran's obstructive sleep apnea was a disease with a clear and specific etiology. His obstructive sleep apnea was caused by narrowing of the oropharynx during sleep most likely secondary to obesity. The VA examiner further opined that the Veteran's obstructive sleep apnea was not due to a specific exposure event during service in Southwest Asia during the Gulf War. The VA examiner further opined that the Veteran's obstructive sleep apnea was less likely than not due to his maxillary sinus fracture because his fracture had healed for many years without symptoms. The VA examiner further explained that the maxillary sinus is not part of the oropharynx and did not participate in exchange during sleep and would not be a risk factor in developing obstructive sleep apnea. An addendum VA opinion was obtained in December 2016 for the Veteran's obstructive sleep apnea. The VA examiner noted that the Veteran had a diagnosis of obstructive sleep apnea confirmed by a sleep study performed in 2015. The VA examiner noted that obstructive sleep apnea was a chronic progressive disorder of obstruction of the airway in adults. The VA examiner further noted that the Veteran was evaluated for snoring after military service in 1998 and was found to have normal sinuses and no airway obstruction. In addition, service treatment records were silent for symptoms or evaluation of obstructive sleep apnea during military service. The VA examiner concluded stating, "I can find no established service-connected evaluations or conditions that I can opine that would attribute his obstructive sleep apnea to any service-connected event, injury or known medical condition at this time. I would opine that this Veteran's current obstructive sleep apnea is less likely than not to be associated with his military service or any known condition of military service." On his January 2017 VA Form 9, the Veteran asserted that he was entitled to service connection for his claimed condition because no documented alternative etiology existed, and he was entitled to the benefit of the doubt. Here, the Veteran does not have an undiagnosed illness since he was diagnosed with obstructive sleep apnea. In addition, the Veteran does not have a medically unexplained chronic multi symptom illness since multiple examiners explained that the Veteran's obstructive sleep apnea was due to narrowing of the oropharynx. See June 2015 and August 2016 VA examiners' reports. And, the August 2016 also noted the Veteran's obesity as the cause of his obstructive sleep apnea. Lastly, obstructive sleep apnea has not been identified by the Secretary as a diagnosed illness warranting presumptive service-connection. As such, the Veteran does not have objective indications of an undiagnosed illness or medically unexplained multi symptom illness and is not entitled to presumptive service connection. The Veteran could, nonetheless, establish service connection with evidence of direct incurrence. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The next question for the Board is again whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Here, the Veteran's service treatment records were silent for any complaints, treatment or diagnosis related to the Veteran's obstructive sleep apnea. In addition, three VA medical opinions unanimously determined that the Veteran's obstructive sleep apnea was not related to his military service. No evidence in support of a nexus between the Veteran's obstructive sleep apnea and his military service has been affiliated with the Veteran's record. The Board acknowledges the Veteran's argument that service connection must be awarded since no alternative etiology has been provided; however, the Board emphasizes that VA regulations do not require that an alternative etiology be provided if a disability is deemed not etiologically related to a Veteran's military service. Besides, the August 2016 VA examiner did provide an alternative etiology finding that the Veteran's obstructive sleep apnea was likely due to his obesity. Lastly, the Veteran has not contended that his obstructive sleep apnea was secondary to his maxillary facture with sinusitis. Even if he had, June 2015 and August 2016 VA examiners' reports are against entitlement to secondary service connection. Nonetheless, the secondary service connection is moot since no lay or medical evidence alleged such. In sum, the record does not contain probative lay or medical evidence sufficient to establish a medical nexus between the Veteran's obstructive sleep apnea and his military service. The preponderance of the evidence is against the claim. Service connection for cause of the Veteran's obstructive sleep apnea must be denied. 2. Entitlement to service connection, to include a secondary basis, for a dental disability The Veteran submitted two treatment plan worksheets in January 2015 from a private dental provider. It is unclear whether the dental work outlined on the private treatment plan worksheets was actually performed. In addition, no diagnoses or etiology opinions are expressly stated on the private treatment plan worksheets. On his January 2017 VA Form 9, the Veteran asserted that he was entitled to service connection for his claimed condition because no documented alternative etiology existed, and he was entitled to the benefit of the doubt. The Veteran has been awarded service connection for cystic acne on his face and neck, residuals of a maxillary fracture with sinusitis, hemorrhoids, and psoriasis. The Board finds at the outset that no dental disability has been identified. As previously mentioned, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a dental disability during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board must deny the claim. Moreover, the Veteran identified on his January 2015 claim form that he was claiming entitlement to service connection for a tooth condition secondary to sleep apnea. Even if the Veteran was found to have a dental disability, entitlement to service connection must still be denied. Since entitlement to service connection for sleep apnea has been denied, service connection cannot be awarded for any disabilities on a secondary basis to that disability. In sum, the record does not contain probative lay or medical evidence sufficient to establish a dental diagnosis nor a nexus. The preponderance of the evidence is against the claim. Service connection for cause of the Veteran's dental disability must be denied. REASONS FOR REMAND Entitlement to a compensable rating for residuals of a maxillary fracture with sinusitis The Veteran was afforded an in-person VA examination in August 2016 for his service-connected sinus disability. The VA examiner noted a diagnosis of sinusitis that was quiescent. The VA examiner noted the Veteran's reports that his condition had worsened, and that the Veteran had monthly headaches, pain, sleep apnea, sinusitis, and teeth grinding. The VA examiner determined that the Veteran's sinusitis did not impact his ability to work. The VA examiner noted that there was no change in the Veteran's sinusitis diagnosis but that the condition was quiescent. The Board notes that the August 2016 VA examiner's report contains contradicting information regarding whether the Veteran's condition was quiescent or whether he experienced monthly non-incapaciting episodes. The Board also finds that remand is warranted to determine the current severity of the Veteran's maxillary fracture with sinusitis given that his VA examination was conducted over 5 years ago. Accordingly, the Veteran's claim for a compensable rating for maxillary fracture with sinusitis is remanded to determine the current severity of the disability. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the current severity of the Veteran's service-connected maxillary fracture with sinusitis. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire. An explanation for all opinions expressed must be provided. 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.