Citation Nr: 21072791 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-12 387 DATE: December 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The objective medical evidence shows OSA was not incurred during active service, nor is it caused by an event, injury or illness occurring in active service. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1970 to June 1974, from March 1977 to July 1977, from May 1999 to July 1999, from February 2002 to September 2002, and from February 2012 to April 2012, during part of which, he was deployed to the Republic of Vietnam and the Kingdom of Thailand, and for which service, among his other medals and decorations, he was awarded the Distinguished Flying Cross and Air Medal with 4 oak-leaf clusters. The Veteran passed away in January 2021; the Appellant is his surviving spouse. In March 2021, the Agency of Original Jurisdiction (AOJ) granted her request to be the substitute claimant in this appeal, and she has retained the same representation as the Veteran. The Board will briefly note at the outset that the Veteran was not afforded the VA examination for OSA directed by the Board in its January 2020 Remand, as the Veteran unfortunately passed away prior to undergoing that examination. Nonetheless, the AOJ obtained a VA medical opinion in its stead, based on the examiner's review of the Veteran's claims file. Accordingly, the Board finds that there has been substantial compliance with the Board's January 2020 remand directives. See Stegall v. West, 11 Vet. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for OSA. The service treatment records (STRs) show in an April 1971 initial flying examination, the treatment provider found the Veteran's mouth and throat to be normal. Additionally, the Veteran's denied past or current ear, nose and throat trouble or frequent trouble sleeping. While stationed in Thailand in November 1972, the Veteran presented with "nerves." The treatment provider noted the record from his first visit had been lost, but he noted the Veteran's report of continuing to have, among other symptoms, insomnia. In an undated Post-deployment Health Questionnaire, for the Veteran's period of active-duty deployment to a classified location from June 1, 1999 through June 24, 1999, the Veteran, to the question as to whether he had experienced during deployment a series of symptoms, to include difficulty sleeping, responded, "None of the above." A February 2002 Pre-deployment Health Assessment, completed by the Veteran 24 days before active-duty deployment, shows the Veteran's self-assessment of having good health and no questions about his health. In February 2012 private treatment notes from approximately 17 days prior to the commencement of the Veteran's last period of active duty, the Veteran's, on review-of-systems questioning, denied sleep disturbance. A May 2012 record of examination, made directly after the Veteran's last period of active service, ending April 7, 2012, notes from the Veteran's report concerning his sleep habits that he had normal amounts of sleep. Moreover, on examination, his nasal cavity, upper airway, oral cavity, pharynx, and oropharynx exhibited no abnormalities. For the Veteran's active-service years, STRs otherwise show no indication of abnormalities mouth and throat and no past or current ear, nose and throat trouble or frequent trouble sleeping, as well as no treatment or diagnoses pertaining to sleep-related disturbances or disorders, to include OSA. The post-active service record shows an April 2013 Gulf War general medical examination, in which the examiner did not note sleep apnea in the Veteran medical history, nor did the Veteran report any additional signs and/or symptoms not addressed during the examination, to include sleep disturbances. Moreover, the examiner further noted the Veteran did not currently have any findings, signs, or symptoms, to include sleepiness. Additionally, although the examiner found symptoms of pyrosis, the Veteran did not report sleep disturbance caused by esophageal reflux. In a July 2013 VA examination for mental disorders, the examiner, at the outset, stated he could not diagnose such a disorder at that time. However, the examiner included in his remarks at the end of his report that the Veteran reported that he typically sleeps 6-8 hours per night, he takes no medication to help him sleep better, but he has a nightmare approximately every other month. The examiner concluded that "[r]esults of the present examination indicate that Veteran does not meet diagnostic criteria for PTSD, another mood disorder or sleep disorder, or any other Axis I or Axis II psychi[a]tric diagnosis at this time. In March 2014, the Veteran underwent a private polysomnogram study, which first noted the Veteran's reported past sleep history of excessive daytime somnolence, insomnia, and snoring, as well as the Veteran's medical history of obesity. At the conclusion of the study, the treatment provider stated his impression of severe OSA syndrome. Among his recommendations was a continuous-positive-airway-pressure machine (CPAP), as well as a weight-loss program. In visits to his private treatment provider between March 2019 and October 2020, the Veteran, although reporting his medical history as including OSA, denied difficulty sleeping in response to review-of-systems questions. As stated above, although the Board in its January 2020 Remand directed the Veteran be afforded a VA examination for OSA, that examination never was conducted. The Appellant's April 2021 Statement in Support of Claim informs the Board that in the summer of 2019 the Veteran was already in great distress due to esophageal cancer, was hospitalized for surgery to remove a cancerous mass, was discharged, then returned within 24 hours with a collapsed lung and internal bleeding, but a period of remission followed. By the summer of 2020, abdominal pain returned, followed by hospitalization at the end of the year and the Veteran passed away in January 2021. After the Veteran's death, the AOJ nonetheless obtained a medical opinion, based on a VA examiner's review of the record in August 2021. The examiner first noted OSA is the only sleep-related disorder with which the Veteran was diagnosed after separation from active service, and she opined that it is not at least as likely as not related to the Veteran's active service. She explained in her rationale that the STRs do not show "any visits for evaluation of, diagnosis of or treatment for any sleep related conditions." The examiner further noted from the nonactive duty portions of the STRs, the Veteran denied frequent trouble sleeping and, after active service, the July 2013 VA examination for mental disorders shows no evidence of sleep disturbances or such disorders as related to a mental health disorder. In looking to the March 2014 sleep study, she noted its diagnosis of severe OSA, but added the Veteran's weight at the time of the study was 232 pounds with a body-mass index (BMI) of 32.2, indicating obesity. The examiner noted that, at the time of the sleep study, the Veteran was 61-years old and concluded that age-related changes which are not specific to military service are the most likely cause for the Veteran's OSA, particularly as obesity greatly increases the risk of developing OSA. She further noted other risk factors include a thicker neck, inherited narrow throat, being male, being older, family history, alcohol use, and smoking. The examiner therefore concluded the Veteran's obesity, age and gender are likely contributors to his OSA. The Board will briefly note here that, as a factual determination from the record, throughout the post-active-service period of medical treatment, both private and at VA treatment providers noted the Veteran's reports of what ultimately, by the time of his death, was characterized as a 50-year habit of cigarette smoking amounting to approximately 60 packs per year. Lastly, the examiner explained that OSA "is the most common type of sleep apnea and obesity is the number one cause for it. It occurs when the muscles in the back of the throat and tongue relax. When the muscles relax, [the] airway narrows or closes and can't get enough air. [The] [b]rain senses [the] inability to breathe and briefly rouses the person from sleep so that can reopen airway [sic]. This pattern can repeat itself several times each hour, all night, impairing ability to reach the deep, restful phases of sleep." The Board has carefully considered the Veteran's reports to treatment providers and examiners, as they appear throughout the record. The Board is aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran was competent to provide statements of symptoms which were observable to his senses and ordinarily there would be no reason to doubt his credibility. Nonetheless, the Veteran's lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Board can readily infer from the record, overall, that the Veteran's contention was that his OSA was caused by active service, but the Board cannot discern anywhere in the evidence a direct explanation offered by the Veteran or the Appellant of the origin of his OSA. It is not the province of the Board to make its own unsubstantiated medical conclusions; it does not have the expertise. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board therefore assigns more probative weight to the findings of the August 2021 VA examiner for OSA, as she is a medical professional who thoroughly reviewed the Veteran's medical history and, for the reasons discussed above, her opinion is therefore adequate for VA adjudication purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The record of treatment overall offers no medical evidence showing a connection of the Veteran's OSA to active service. The STRs do not show in-service reports, complaints, treatment, or diagnoses pertaining to OSA or a sleep-related disorder, other than insomnia in November 1972, itself associated with the Veteran's complaint of "nerves." The Veteran did not seek treatment for insomnia, OSA or any sleep-related disorder upon separation from active service, nor in the several years following until, as best the Board can tell from what is offered in the record, the Veteran underwent the March 2014 private sleep study. Nonetheless, there remains no evidentiary basis on which to establish a causal connection or "nexus" between the Veteran's then current OSA before he passed away and an event, injury, or illness in active service. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection for OSA. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.