Citation Nr: 21074102 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-32 677 DATE: December 14, 2021 ORDER Entitlement to service connection for a sleep apnea disability, to include as secondary to major depressive disorder is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea disability is not caused or aggravated by his service-connected disabilities, to include his major depressive disorder, and is not otherwise related to an in-service injury or disease. 2. The Veteran's back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep apnea disability, to include as secondary to major depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to February 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2013 and June 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board of Veterans' Appeals (Board) in May 2019 and June 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a sleep apnea disability, to include as secondary to major depressive disorder The Veteran contends that sleep apnea is related to his period of active service. Alternatively, the Veteran contends that his sleep apnea condition was caused or aggravated by his service-connected disabilities, principally his service-connected major depressive disorder. Specifically, the Veteran argues that his major depressive disorder has resulted in chronic sleep impairment and obesity, which has either caused or aggravated his sleep apnea. The Veteran had an examination for his sleep apnea condition in December 2020. The examiner opined that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by his service-connected disabilities. The examiner stated that while some limited studies have noted a higher incidence of obstructive sleep apnea in veterans with anxiety disorders including post-traumatic stress disorder (PTSD), there is insufficient documented evidence in the professional literature to conclude that obstructive sleep apnea is proximately due to PTSD. Furthermore, the examiner noted that obstructive sleep apnea is due to an anatomical stress that decreases airflow through the oropharynx, and that this cannot be caused or aggravated by a mental health condition. An addendum medical opinion regarding the etiology of the Veteran's sleep apnea was obtained in July 2021. The examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by service. The examiner stated that the in-service notes do not relate a complaint or condition similar to obstructive sleep apnea. Additionally, the examiner noted that the actual complaint and diagnosis of sleep apnea did not appear until 30 years after separation from service. The examiner further opined that it was less likely than not that the Veteran's sleep apnea was caused by his service-connected disabilities. The examiner stated that with statement from December 2020 examiner in regard to the information supplied by the Veteran's representative. The examiner noted that although some limited studies have noted a higher incidence of obstructive sleep apnea in veterans with anxiety disorders including PTSD, there is insufficient documented evidence in the professional literature to conclude that obstructive sleep apnea is proximately due to PTSD or depression. The examiner noted that obstructive sleep apnea as seen in this Veteran has the etiology in a mechanical process of poor flow through the upper airway as a result of the relaxation of the tissues there that then obstruct the airway at that level, not due to an emotional illness. The examiner further opined that it was less likely than not that the Veteran's sleep apnea was aggravated beyond its natural progression by the Veteran's service-connected disabilities. The examiner stated that obstructive sleep apnea is a mechanical issue where there is poor flowthrough the upper airway as a result of the relaxation of the tissues there that then obstruct the airway at that level and is not affected by skin condition, ringing in the ears, head pain, loss of hearing, or emotional state and diagnoses. Additionally, the examiner opined that it was less likely than not that the Veteran's service-connected disabilities caused or aggravated the Veteran's obesity, and that it was less likely than not that the Veteran's obesity was a substantial factor in causing or aggravating his sleep apnea. The examiner noted that the Veteran has had fluctuating weight, as is common in adults, and that the Veteran recently had been overweight at worst, not obese, since his BMI was less than 30. Specifically, the examiner noted that the Veteran's BMI was 27.4 in January 2020, 27.5 in December 2019, and 27.5 in May 2019. Additionally, the examiner noted that while sleep apnea is aggravated by obesity, the sleep apnea in this Veteran was present in the presence of and in the absence of his obesity as seen by the fluctuating BMI shown above. The Board finds that entitlement to service connection for an obstructive sleep apnea disability is not warranted. The Board finds the July 2021 opinion to be highly probative. The probative value of medical opinion is based on his or her knowledge and skill in analyzing the data and the medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The July 2021 opinion was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. The July 2021 opinion is also shown to have been based on a thorough review of the Veteran's record and is accompanied by a detailed rationale. Additionally, the examiner adequately addressed why the Veteran's sleep apnea was less likely than not related to his military service. Further, the examiner adequately addressed why the Veteran's sleep apnea was less likely than not caused or aggravated by his service-connected disabilities, to include major depressive disorder and obesity. Furthermore, there is no medical opinion to the contrary. Although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matters of the diagnosis and etiology of sleep apnea are complex medical matters that fall outside the realm of common knowledge of a lay person. See Clayburn v. West, 12 Vet. App. 488, 496-97 (1997) (holding that a veteran is not competent to relate currently diagnosed joint disease to the continuous post-service back injury). Specifically, the question of causation of obstructive sleep apnea involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of how the human body develops obstructive sleep apnea and the impact past medical symptoms could have on such disease, if any. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of obstructive sleep apnea. Therefore, the Board finds that the Veteran's assertion that his obstructive sleep apnea is etiologically related to his active service or was caused or aggravated by his service-connected disabilities has no probative value. Based on the foregoing, the Board finds that service connection for obstructive sleep apnea is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the finding that there is a causal relationship between the Veteran's obstructive sleep apnea and to an event, injury or disease that occurred in military service. As such, service connection for obstructive sleep apnea is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a back disability The Veteran contends that his current degenerative arthritis of the spine is related to complaints of low back pain and two unreported falls resulting in low back pain during service. The Veteran had an examination for his back condition in September 2019. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner stated that the Veteran did have one visit during active duty for lower back pain, but it was due to lumbar strain from working in laundry. The examiner noted that strains are typically acute and clear up with treatment and rest. Additionally, the examiner noted that the April 1976 back pain was from infection related to the urinary complaints, and that the basketball incident was another acute strain type of situation, which typically resolves with conservative treatment. The examiner opined that the three instances do not "represent chronicity of lower back pain due to the same diagnosis that was ongoing". The examiner further stated that there was no evidence of any other service treatment records regarding continued lower back pain and treatment. The examiner noted that the Veteran does have evidence of lumbar degeneration per imaging, but this is years after service, and that lumbar degeneration takes time to develop and is due to wear and tear from strenuous activity. Furthermore, the examiner stated that while it is true that soldiers do a lot of strenuous activity from marching, rucking, to training for combat, without any further in-service treatment records to confirm continued low back pain, it is less likely than not due to this in service back pain. In a December 2020 addendum medical opinion, the examiner opined that it was less likely than not that the Veteran's back condition had its onset in service or was otherwise causally or etiologically related to the Veteran's service. The examiner found that because the Veteran's 1974 service discharge examination noted no back condition at the time of discharge, it would be less likely than not that he had a back condition that occurred during active service. An addendum opinion regarding the etiology of the Veteran's back condition was obtained in July 2021. The examiner opined that it was less likely than not that the Veteran's back condition was incurred in or caused by his active service. The examiner noted that there was a specific incident related to musculoskeletal back pain that appears to have been self-limited and related as being due to lifting heavy objects in the laundry the day prior on September 1, 1976. Additionally, the examiner noted that there was a prior incident in April 1976 where there was also abnormal urine that apparently self-resolved. The examiner stated that the Veteran's subsequent encounters do not mention a back complaint, and no back issues were noted on his separation examination in February 1977. The examiner stated that the Veteran's post-service encounters appear to narrow down back complaint to approximately 2010, which is more than two decades after service and that radiology appears in 2018. The examiner concluded that there is inadequate evidence that the Veteran's back condition stemmed from the incident in service that appears to have been acute and resolved quickly. Upon review of the record, the Board finds that service connection for a back condition is not warranted. The Board finds the July 2021 examiner's medical opinion to be highly probative because the examiner provided an adequate rationale based on the relevant evidence of record. The examiner noted the Veteran's in-service back complaints were acute and resolved quickly and that medical evidence of record indicates that the Veteran's current back issues began in approximately 2010, which is more than two decades after separation from service. To the extent that the Veteran believes that his back condition is linked to his active service, the Board notes that he is competent to provide testimony concerning factual matters of which he has fight-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his back condition is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's back condition and his military service. Finally, service connection may also be granted for chronic disabilities, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service or based on continuity of symptoms when first noted in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), to include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, there is no evidence of the Veteran's back condition having been diagnosed within one year after service, let alone to a compensable degree. See 38 C.F.R. § 3.309. As such, presumptive service connection is not warranted for this disability. In sum, the evidence preponderates against the claim for service connection for a back disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a back disability must be denied. 38 C.F.R. § 3.303. 3. Entitlement to service connection for hypertension The Veteran contends that hypertension is related to his period of active service. Specifically, the Veteran contends that his hypertension had its onset in the 1970's when he was told his blood pressure was elevated and medications were given early. The Veteran further asserts that he has taken blood pressure medications for decades. The Veteran had an examination for his hypertension in January 2021. The examiner opined that hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no diagnosis of hypertension in service or at separation and March 2000 VA treatment records related new onset hypertension, some 23 years after separation from service. An addendum medical opinion regarding the etiology of the Veteran's hypertension was obtained in July 2021. The examiner opined that it was less likely than not that the Veteran's hypertension was incurred in or caused by his active service. The examiner acknowledged that there was an elevated reading of 148/70 at separation in February 1977. However, the examiner noted that the criteria for a hypertension diagnosis was not met, because consistent readings of diastolic of greater than 90, such as three in the same month, were not found. The examiner indicated that the Veteran did not have a formal diagnosis of hypertension until decades after separation from service in March 2000, and that there was no mention of hypertension or elevated blood pressure at the time of discharge from the VAMC hospital. The examiner stated that transiently elevated blood pressure readings are of multifactorial etiology and would be expected if under a stressful situation or in physical distress, and that hypertension is not diagnosed until the blood pressure is persistently elevated. Additionally, the examiner noted that the Veteran likely has been taking medications for decades at this point. However, the examiner indicated that the evidence of record shows that date to have been after the April 22, 1996 hospitalization, which is silent for baseline or newly diagnosed hypertension. Upon review of the record, the Board finds that service connection for hypertension is not warranted. The Board finds the July 2021 examiner's medical opinion to be highly probative because it provided a detailed rationale based on the relevant medical and lay evidence of record. The examiner fully explained the reasoning underlying the opinion and noted that the Veteran's service treatment records do not suggest that his hypertension had onset in service. Although there was a noted instance of high blood pressure in service noted in his service treatment records, there was no formal diagnosis of hypertension. The examiner also noted that there is no medical evidence of a hypertension diagnosis until the 2000's, which is more than one year after the Veteran's separation. To the extent that the Veteran believes that his hypertension is linked to his active service, the Board notes that he is competent to provide testimony concerning factual matters of which he has fight-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his high blood pressure is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's hypertension and his military service. Finally, service connection may also be granted for chronic disabilities, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a), to include hypertension. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, there is no evidence, nor allegation, that the Veteran's hypertension was diagnosed either in service or within one year after service, let alone to a compensable degree. See 38 C.F.R. § 3.309. The medical evidence of record indicates that the Veteran was not formally diagnosed with hypertension until 2000, which is several years after his separation from service. Without evidence supporting a diagnosis in service or within one year of separation, the claim is not warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.