Citation Nr: 21073398 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 10-27 728A DATE: December 8, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected residuals of a cerebrovascular accident (CVA) and/or hypertension is denied. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea did not manifest during his service in Southwest Asia. 2. The Veteran's obstructive sleep apnea was not caused by his service in Southwest Asia. 3. The Veteran's obstructive sleep apnea was not caused by service-connected cerebrovascular accident and/or hypertension. 4. The Veteran's obstructive sleep apnea was not aggravated by service-connected cerebrovascular accident and/or hypertension. 5. The Veteran's obstructive sleep apnea is not a medically unexplained chronic multi-symptom illness. CONCLUSION OF LAW The criteria to establish service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(d), 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force Reserve from May 1970 to September 1970 and October 2005 to November 2006, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Houston, Texas Regional Office (RO). In June 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In August 2021, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Obstructive Sleep Apnea Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026, and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a). The Veteran asserts three theories of service connection as to his OSA: (1) caused and/or manifested during deployment in Southwest Asia from May 2006 to June 2006 based on direct service connection; (2) caused and/or aggravated by service-connected cerebrovascular accident (CVA) and/or hypertension based on secondary service connection; or (3) a medically unexplained chronic multi-symptom illness based on presumptive service connection under § 3.317. The claim will be denied on all theories of service connection. In service medical history reports dated September 1970, October 1976, August 1978, July 1981, March 1984, April 1985, and February 1989, the Veteran answered "no" to the question of whether he then had, or once had frequent trouble sleeping. In service medical examination reports dated January 1993 and December 1997, service medical examiners noted no sleeping or respiratory abnormalities and the Veteran weighed 141 and 145 pounds, respectively. In service medical history reports dated January 1993 and December 1997, the Veteran answered "no" to the question of whether he then had, or once had frequent trouble sleeping. In a March 2006 pre-deployment health assessment, the Veteran reported that his health was "very good" and that he had no medical problems or health concerns. In a May 2006 post-deployment health assessment, the Veteran answered "no" to whether he then had or developed during deployment symptoms of trouble breathing or still feeling tired after sleeping. In a June 2006 letter, the service medical neurologist indicated that the Veteran had a stroke in May 2006 and the primary risk factor for the stroke was hypertension. There was no mention of OSA. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records and statements made during medical diagnoses and treatment, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Non-VA sleep studies dated December 2007 and July 2008 reflect a diagnosis of OSA. Although the Veteran was diagnosed with OSA within 13 months of service separation, OSA is not listed as a "chronic disease" under § 3.309(a), and therefore is not subject to presumptive service connection under this regulation. In his January 2009 notice of disagreement, the Veteran asserted that although he was not formally diagnosed with OSA at the time of his May 2006 stroke, he was "convinced" that he had OSA that resulted in his stroke. However, the Veteran is not competent, as a lay-person, to provide a medical opinion relating his OSA to his service-connected CVA. 38 C.F.R. § 3.159(a)(1); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran submitted an article dated January 2009 titled "Study Shows How Sleep Apnea May Cause Stroke" reflecting how "sleep apnea," without differentiating the types of sleep apnea, can cause stroke by decreasing blood flow, raising blood pressure, and harming the brain's ability to modulate these changes. The Veteran maintained that the conclusion reached in the article was the cause of his May 2006 CVA. The Veteran highlighted a notation in his May 2006 STR indicating that it was not clear whether the Veteran's CVA was an isolated event or a symptom of an illness requiring specific evaluation and treatment. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. 38 C.F.R. § 3.159(a); Wallin v. West, 11 Vet. App. 509, 514 (1998). However, the Board notes that the article does not differentiate between the types of sleep apnea and addressed sleep apnea as a potential cause of stroke. In his June 2017 Board hearing, the Veteran testified having daytime fatigue in early 2000. The Veteran is competent to report experiencing daytime fatigue as a symptom. 38 C.F.R. § 3.159(a)(2). However, the Veteran is not credible because the Veteran denied having daytime fatigue in early 2000 as evidenced by the Veteran answering "no" to whether he then had or developed during deployment symptoms of trouble breathing or still feeling tired after sleeping in his May 2006 post-deployment health assessment. Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth to receive proper care); Rucker, 10 Vet. App. at 73. In a June 2017 statement, the Veteran's wife reported that the Veteran snored loudly at night and had trouble breathing. Although the Veteran's wife's statement provides insight concerning the Veteran's observable symptoms, it does not address the issue of whether the Veteran's OSA manifested during service, was caused by service, or was caused and/or aggravated by service-connected CVA and/or hypertension. 38 C.F.R. § 3.159(a)(1). Additionally, the Veteran's wife is not competent, as a lay-person, to link the Veteran's symptoms of loud snoring and trouble breathing during sleep to the Veteran's OSA diagnosis, active-duty service, or service-connected disorders. Jandreau, 492 F.3d at 1372. VA negative etiology opinions as to direct and secondary service connection dated November 2016, November 2017, January 2018, and July 2020 were found inadequate by previous Board remands and Joint Motions for Remand (JMR) granted by the U.S. Court of Appeals for Veterans' Claims (Court). These VA medical opinions are therefore of low probative value. In the April 2021 JMR, the Court instructed the Board to address entitlement to service connection under 38 C.F.R. § 3.317 as to the Veteran's sleep disturbances and the Veteran's diagnosis of OSA within one year of service discharge. The Veteran's representative contends that "the provisions of § 3.317 are applicable ... since [the Veteran] experiences signs or symptoms involving the respiratory system and sleep disturbances which are contemplated under the regulation." 38 C.F.R. § 3.317 is a theory of presumptive service connection for "a qualifying chronic disability" occurring in Persian Gulf veterans. A qualifying chronic disability is either an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. §§ 3.317(a)(2)(i)(A), (B). A MUCMI is defined as a diagnosed illness without conclusive pathophysiology or etiology, that 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. 38 C.F.R. § 3.317(a)(2)(ii). In Goodman v. Shulkin, 870 F.3d 1383, 1387 (Fed. Cir. 2017), the Federal Circuit held that in individual MUCMI determinations, the VA adjudicator may consider evidence of a medical expert opinions and all other facts of record to make the final determination of whether a claimant has proven, based on the claimant's unique symptoms, the existence of a MUCMI. In Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018), the Court held that (1) an illness is a MUCMI where either the etiology or the pathophysiology of the illness is inconclusive and is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood and (2) the determination of whether a condition is a MUCMI must be based on the individual veteran's circumstances rather than the illness as it is understood in the general public. Etiology is defined as "the cause or causes of a disease." https://medlineplus.gov/ ency/article/002356.htm (last visited December 1, 2021). Pathophysiology is defined as "the functional changes associated with or resulting from disease or injury." https://medical-dictionary.thefreedictionary.com/patho physiology (last visited December 1, 2021). The Veteran's OSA is not an "undiagnosed illness" because the Veteran has been diagnosed with OSA as evidenced by the December 2007 non-VA sleep study. The section titled "Diagnosis and Impressions" in the Veteran's December 2007 non-VA sleep study revealed the following: "(1) Moderately severe obstructive sleep apnea OSA (AAHI 9.5/hr; RDI with RERAs 20.22/hr; 25 OSA episodes total; evidence of loud snoring) associated with oxygen desaturation down to 79% and exacerbated by the supine body position (all respiratory events, supine index 11.2/hr) and REM sleep (REM index 38.2/hr) 327.23; 95810 (2) Evidence of frequent arousal from sleep (38.9/hr) contributing to its fragmentation and creating risk of excessive daytime sleepiness EDS (Epworth sleepiness scale score 17/24) (3) Few periodic limb movements of sleep PLMS (PLMS index 2.9/hr; PLMS arousal index 1.5/hr) (4) Judging by the calculated BMI of 29 and measured neck circumference of 17'', the patient may be overweight." The December 2007 non-VA physician's assessment as to the partial understanding of the etiology and pathophysiology of the Veteran's OSA is well-founded and highly probative. The etiology of the Veteran's OSA is partially understood as evidenced by the non-VA physician's assessment that the Veteran's OSA was "associated with oxygen desaturation down to 79% and exacerbated by the supine body position ... [j]udging by the calculated BMI of 29 and measured neck circumference of 17'', the [Veteran] may be overweight." The pathophysiology of the Veteran's OSA is partially understood as evidenced by the non-VA physician's assessment that the Veteran experienced "frequent arousal from sleep ... contributing to its fragmentation and creating risk of excessive daytime sleepiness" and "few periodic limb movements during sleep." The Board's reliance on the December 2007 non-VA examiner's assessment is consistent with the Federal Circuit's holding in Goodman, 870 F.3d at 1387 (holding that the VA adjudicator may consider evidence of a medical expert opinions and all other facts of record to make the final determination of whether a claimant has proven, based on the claimant's unique symptoms, the existence of a MUCMI). Therefore, based on these facts, the Veteran's OSA does not constitute a MUCMI under § 3.317. In the September 2021 VA addendum, the examiner opined that the Veteran's OSA did not manifest during and/or was not caused by his service in Southwest Asia for several reasons. The examiner indicated that "trouble sleeping is a hallmark of OSA" and the Veteran denied feeling tired after sleeping in his May 2006 post-deployment health assessment showing a separation of that symptom from OSA resulting in no evidence of sleep disturbance during service. Additionally, although the Veteran claimed OSA onset during service with continuous symptoms, the examiner indicated that "it is less likely than not to be the case" because there is no evidence of OSA during service and the Veteran's claimed symptoms are considered general symptoms due to numerous other etiologies. The examiner also noted that exposures of the type in Southwest Asia are not associated with the development of OSA. The examiner opined that the Veteran's OSA was not caused or aggravated by service-connected CVA because there is no evidence of central apnea which is the only possible mechanism by which a CVA could complicate OSA and that adjustments in CPAP or modality of treatment is common and does not necessarily represent aggravation. The examiner opined that the Veteran's OSA was not caused or aggravated by service-connected hypertension because it is accepted medical fact that hypertension does not cause or aggravate OSA due to no anatomical or physiological mechanism by which the Veteran's hypertension can cause, impact, or aggravate OSA. The September 2021 VA addendum is highly probative because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical opinion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A preponderance of the evidence is against a finding that the Veteran's OSA constitutes a MUCMI, manifested and/or caused by service in Southwest Asia, and caused and/or aggravated by service-connected CVA and/or hypertension. As noted, the Veteran is not credible as to his account of having daytime fatigue in early 2000. The Veteran's OSA is not a MUCMI based on the December 2007 non-VA examiner's assessment as to the partial understanding of the etiology and pathophysiology of the Veteran's OSA. The September 2021 VA examiner opined that the Veteran's OSA did not manifest during service in Southwest Asia, was not caused by his service in Southwest Asia, was not caused by service-connected CVA and/or hypertension and was not aggravated by service-connected CVA and/or hypertension. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.