Citation Nr: 21071533 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-33 595 DATE: November 30, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, including as due to in-service asbestos exposure or service-connected bronchiectasis, is denied. Entitlement to service connection for hypertension, including as due to in-service asbestos exposure or service-connected bronchiectasis, is denied. REMANDED Entitlement to an initial compensable disability rating prior to January 6, 2020, and to an initial rating greater than 30 percent thereafter, for bronchiectasis is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran's military occupational specialty (MOS) was fireman which has a high probability of in-service asbestos exposure; thus, his in-service asbestos exposure is presumed. 2. The record evidence shows that the Veteran's obstructive sleep apnea and hypertension are not related to active service or any incident of service, including as due to in-service asbestos exposure or service-connected bronchiectasis. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea, including as due to in-service asbestos exposure or service-connected bronchiectasis, have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 2. The criteria for service connection for hypertension, including as due to in-service asbestos exposure or service-connected bronchiectasis, have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1972 to March 1974 in the U.S. Navy, including Blue Water Navy service in the official waters offshore of the Republic of Vietnam from April to June 1972 and from January to March 1973. He also had additional unverified U.S. Navy Reserve service. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision which granted service connection for bronchiectasis, assigning a zero percent rating effective August 28, 2013, and denied service connection for obstructive sleep apnea and for hypertension, each including as due to in-service asbestos exposure or service-connected bronchiectasis. In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a higher initial 30 percent rating effective January 6, 2020, for the Veteran's service-connected bronchiectasis. In October 2020, the Board remanded, in pertinent part, the currently appealed service connection claims for hypertension and for obstructive sleep apnea, each including as due to in-service asbestos exposure or service-connected bronchiectasis, to the AOJ for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ obtain addendum opinions concerning the nature and etiology of these disabilities. The requested opinions were obtained in November 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Both the Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's October 2020 denial of a higher initial rating for service-connected bronchiectasis to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion). The Court granted the Joint Motion in July 2021, vacating and remanding only that part of the Board's October 2020 decision which denied a higher initial rating for service-connected bronchiectasis. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Service Connection Entitlement to service connection for obstructive sleep apnea and for hypertension, each including as due to in-service asbestos exposure or service-connected bronchiectasis The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for obstructive sleep apnea and for hypertension, each including as due to in-service asbestos exposure or service-connected bronchiectasis. He essentially contends that he incurred both of these claimed disabilities during active service, including as due to in-service asbestos exposure, and experienced continuous post-service disability. He alternatively contends that his service-connected bronchiectasis caused or contributed to his obstructive sleep apnea and hypertension. The record evidence does not support finding an etiological link between either obstructive sleep apnea or hypertension and active service, including as due to in-service asbestos exposure or service-connected bronchiectasis. It shows instead that, although the Veteran complained of and sought treatment for obstructive sleep apnea and hypertension in the decades since his service separation, neither of these disabilities is related to active service or any incident of service, including as due to in-service asbestos exposure or service-connected bronchiectasis. With respect to the assertion of in-service asbestos exposure, the available service personnel records, including his DD Form 214, show that the Veteran's military occupational specialty (MOS) was fireman and he served in this capacity while onboard several U.S. Navy ships, including U.S.S. CONSTELLATION. The Board notes in this regard that the MOS of fireman has a highly probability of in-service asbestos exposure. This finding is in accord with the Veteran's 2015 statements that he was exposed to asbestos while onboard U.S.S. CONSTELLATION. Thus, the Board finds that the Veteran likely was exposed to asbestos while on active service. The available service treatment records show that, at a pre-enlistment physical examination in February 1972, prior to his entry on to active service in March 1972, clinical evaluation was within normal limits. The Veteran's blood pressure was 114/76 (or within normal limits). At his separation physical examination in March 1974, clinical evaluation was within normal limits. His blood pressure was 120/80 (or within normal limits). He denied all relevant in-service medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for obstructive sleep apnea and for hypertension, each including as due to in-service asbestos exposure or service-connected bronchiectasis. It shows instead that, although the Veteran complained of and sought treatment for each of these disabilities in the decades since his service separation, neither of them is related to active service or any incident of service, including as due to in-service asbestos exposure or service-connected bronchiectasis. For example, a private sleep study dated in July 2013 showed a diagnosis of hypersomnia with sleep apnea unspecified. On private outpatient treatment in August 2013, it was noted that a recent sleep study had shown severe sleep apnea. The Veteran's pulmonary function testing "showed no obstructive defect or diffusion defect but yet a mild restrictive defect possibly related to his mild obesity [and] he does have hypertensionone of the consequences of untreated sleep apnea." The diagnoses included sleep apnea and hypertension "[p]ossibly as a result of his sleep apnea." On VA hypertension Disability Benefits Questionnaire (DBQ) in January 2020, the Veteran reported being diagnosed as having hypertension "soon after retirement in 1997." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. His treatment plan included taking continuous medication for hypertension. His blood pressure was 174/89, 162/84, and 164/88. The VA examiner opined that it was less likely than not that the Veteran's hypertension is related to active service, including as due to his claimed in-service asbestos exposure. The rationale for this opinion was based on a review of the claims file. The rationale also was, "Asbestosis (not found in Veteran) can cause pulmonary hypertension due to extensive scarring of the lungs. It is not reported to cause systemic hypertension." The rationale further was based on a review of relevant medical literature. The diagnosis was hypertension. On VA sleep apnea DBQ in January 2020, it was noted that the Veteran had been diagnosed as having mixed sleep apnea in July 2013 and was using a continuous positive airway pressure (CPAP) machine. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. Continuous medication was not required for control of a sleep disorder. He did not require use of a breathing assistance device. He currently experienced persistent daytime hypersomnolence. He had "[d]ifficulty concentrating due to excessive daytime sleepiness." The VA examiner opined that it was less likely than not that the Veteran's sleep apnea is related to active service, including as due to his claimed in-service asbestos exposure. The rationale for this opinion was based on a review of the claims file. The rationale also was: [The] Veteran suffers [from] two types of sleep apnea. Central Sleep apnea is caused by failure of the brain to stimulate the body to take a breath (no breathing effort). Obstructive sleep apnea is a physical obstruction of the upper air passage by soft tissues obstructing the bony airways. Most common is obesity causing fatty deposits in the air passages...Risk factors for this Veteran: [obstructive sleep apnea] is 2-3 [times] more common in men than women and in people older than 50...No peer reviewed literature attributes sleep apnea to interstitial lung disease, to include asbestosis; high resolution CT scanning failed to demonstrate interstitial lung disease or pleural plaques to support a diagnosis of asbestosis. [The] Veteran's restrictive lung findings are due to paralysis of the right diaphragm, not to lung disease. The diagnosis was mixed sleep apnea. Because the Board previously found the January 2020 VA medical nexus opinions concerning the contended etiological relationship between hypertension, obstructive sleep apnea, and service-connected bronchiectasis on a secondary service connection basis are inadequate for VA adjudication purposes in the October 2020 remand, this evidence was not reviewed or relied upon in adjudicating the currently appealed claims. In a June 2020 addendum opinion, a VA clinician opined that it was less likely than not that the Veteran's service-connected bronchiectasis caused or aggravated his hypertension. The rationale for this opinion was: Bronchiectasis is a blockage or obliteration of the air passages in the lungs. While this blockage can arise from myriad causes, [the] Veteran's most likely cause is inflammation of the airway linings due to stagnant secretions due to right [diaphragm] hemiparesis. Neither the inflammation nor the obstruction causes systemic hypertension. In contrast and unrelated to this case, severe extensive bronchiectasis can increase the resistance of pulmonary vasculature, resulting in pulmonary hypertension. [The] Veteran is not claiming pulmonary hypertension and has no diagnosis of pulmonary hypertension. The bronchiectasis is neither severe nor extensive. In a series of comprehensive medical opinions dated in November 2020, another VA clinician opined that it was less likely than not that the Veteran's service-connected bronchiectasis caused or aggravated either his hypertension or his obstructive sleep apnea. The rationale for these opinions was based on a review of the claims file and relevant medical literature. The rationale also was that bronchiectasis, hypertension, and obstructive sleep apnea were "three entirely different conditions." This clinician stated: 1. Obstructive Sleep Apnea is physical blockage (obstruction) of the airways in the back of the nose & throat. The blockage causes interruption of breathing (apnea & hypopnea) during sleep. 2. Bronchiectasis is a collapse of air passages in the lungs, usually following an infection. In this Veteran the root cause of bronchiectasis is probably his paralyzed & elevated hemidiaphragm (the muscle in the right half of the diaphragm is weak, allowing air to stagnate in the lower right lung...This might affect blood flow through the right lower lobe. Removal of an entire lung (blood does not flow at all through a lung after it has been removed) does not cause elevation of systemic blood pressure or Obstructive Sleep Apnea. 3. Systemic hypertension is increased blood pressure throughout the body, except the lungs. Hypertension of the lungs is pulmonary hypertension. Obstructive Sleep Apnea is one of many risk factors for systemic hypertension. This VA clinician next opined that it was less likely than not that the Veteran's service-connected bronchiectasis caused or aggravated his hypertension. The rationale for this opinion was: Bronchiectasis is blockage of small air-passages in one portion of the lung. The blood flow to this blocked area is decreased, but the lungs have enough reserve capacity to oxygenate blood for 10+ METs of activity. Decrease of blood flow through about 10 of the total lung volume is hemodynamically insignificant. Systemic hypertension is elevated blood pressure in the systemic circulation. Significant problems in the lungs cause pulmonary hypertension. As noted in [medical] literature...pulmonary disease is not a recognized risk factor for systemic hypertension. This clinician next noted: [The] Veteran's blood pressure 164/88 while taking three medications...is unusual. As described in [medical literature]...75% of [treatment] resistant hypertension has no identifiable cause. For the remaining 25%, the most common causes of treatment-resistant hypertension are listed in [medical] literature. Obstructive sleep apnea is one of many causes. Lung disease is not. The November 2020 VA clinician then provided a pathophysiologic explanation for his opinion that it is less likely than not that the Veteran's service-connected bronchiectasis caused or aggravated his hypertension. It was: The blood is pumped through two loops, like a figure "8." Venous blood from which oxygen has been extracted returns to the right half of the heart (through the vena cava). The right half of the heart pumps the blood at low pressure (Systolic Pulmonary artery pressure <25 mmHg) through the lungs (through the pulmonary artery). The blood becomes oxygenated in the lungs and returns to the left half of the heart (through the pulmonary veins). The left half of the heart pumps the oxygenated blood at higher pressure (~130/70 mmHg) through the aorta to the body. Venous blood from which oxygen has been extracted returns to the right half of the heart (through the vena cava)....Scarring in the lung is in the wrong loop of the "8" to cause systemic hypertension. This VA clinician then clarified, "I explained [in a prior opinion] that the hemidiaphragmatic paralysis if the most common cause of the bronchiectasis. If the non-functioning diaphragm is the cause of the bronchiectasis, it is impossible for the bronchiectasis to be the cause of the paralysis of the right hemidiaphragm." This clinician next opined in November 2020 that it was less likely than not that the Veteran's service-connected bronchiectasis caused or aggravated his obstructive sleep apnea. The rationale for this opinion was based on a review of the claims file and relevant medical literature (as noted above). The rationale also was: Bronchiectasis and scarring of the lungs plays no role in sleep apnea. I [reviewed] extensive literature...describing [central sleep apnea or CSA] & [obstructive sleep apnea or OSA]. OSA is caused by obstruction of the air passages in the head. There is no suggestion in any of these [medical literature] sources that bronchiectasis or scarring of the lungs causes nocturnal blockage (obstruction) of air passages, resulting in inability to breathe (apnea). Central sleep apnea is an abnormality of brain function; the brain does not "instruct" the lungs to take a breath...Obstructive sleep apnea is caused by soft tissue structures of the upper airway blocking the air passages. This can result from bony abnormalities resulting in smaller than normal air passages (e.g. micrognathia), or from soft tissues that are larger than normal (e.g. patients with Down's syndrome have larger tongues than other people, patients with enlarged adenoids, and excess submucosal fatty tissue seen in obese people). Contrary to the Veteran's lay assertions, the record evidence shows that his obstructive sleep apnea and hypertension are not related to active service or any incident of service, including as due to his in-service asbestos exposure or service-connected bronchiectasis. The Board has conceded that the Veteran likely was exposed to asbestos during active service. Nevertheless, multiple VA clinicians opined in January and in November 2020 that there was no etiological link between either of these claimed disabilities and active service or any incident of service, including as due to in-service asbestos exposure or service-connected bronchiectasis. All of these opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for obstructive sleep apnea or hypertension, each including as due to in-service asbestos exposure or service-connected bronchiectasis. In summary, the Board finds that service connection for obstructive sleep apnea and for hypertension, each including as due to in-service asbestos exposure or service-connected bronchiectasis, is not warranted. REASONS FOR REMAND Entitlement to an initial compensable disability rating prior to January 6, 2020, and to an initial rating greater than 30 percent thereafter, for bronchiectasis is remanded. As noted in the Introduction, after the Board denied the Veteran's claim of entitlement to an initial compensable disability rating prior to January 6, 2020, and to an initial rating greater than 30 percent thereafter, for bronchiectasis in October 2020, the Court vacated only this part of the October 2020 Board decision in July 2021 by granting a Joint Motion. Both parties to the Joint Motion argued successfully to the Court that the Board erred, in pertinent part, by relying on VA examinations dated in June 2014 and in January 2020 which did not explain why the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test was not used at either examination in violation of 38 C.F.R. § 4.96(d)(2). See Joint Motion dated July 15, 2021, at pp. 2; see also 38 C.F.R. § 4.96(d)(2) (2020). Both parties also argued that, on remand, another examination should be scheduled which addresses this matter. The Board notes that it is bound by the Court's Order granting the Joint Motion. Thus, the Board finds that, on remand, another examination should be scheduled which addresses this matter. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected bronchiectasis. Pulmonary function testing must be conducted, if appropriate. If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test is not used, then the examiner should explain why this test would not be useful or valid. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.