Citation Nr: 21074203 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-40 708A DATE: December 14, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected persistent depressive disorder and diabetes is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include pulmonary embolism, deep vein thrombosis, and chronic obstructive pulmonary disease (COPD), as secondary to service-connected carcinoma of the lung is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has obstructive sleep apnea due to an event, injury, or disease in service or secondary to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected persistent depressive disorder and diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1967 to September 1969, including service in the Republic of Vietnam. This matter was initially before the Board in June 2021, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded a VA examination for his claims. Such development has been completed and the matter returned to the Board for appellate consideration. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected persistent depressive disorder and diabetes. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. The Board further finds that the preponderance of the evidence is against a finding that the Veteran's sleep apnea is proximately due to or the result of or aggravated beyond its natural progression by service-connected depressive disorder and/or diabetes. The Veteran's service treatment records (STRs) do not contain any complaints, treatment, or diagnoses related to sleep apnea. Upon separation, the Veteran's clinical evaluation was deemed normal. See September 1969 Report of Medical Examination. Additionally, the Veteran denied "frequent trouble sleeping" in his report of medical history. Medical treatment records show the Veteran was not diagnosed with sleep apnea until 1996, over 20 years after his separation from service. See May 1996 Private Treatment Record. The Veteran was afforded a VA examination in September 2021. The examiner opined that the Veteran's sleep apnea is less likely than not related to an in-service injury, event, or disease. Additionally, the examiner opined that the Veteran's depressive disorder and diabetes did not cause or aggravate his current sleep apnea. Regarding direct service connection, the examiner concluded that there is no evidence of sleep apnea during service. His separation examination is negative for sleep disturbances. During service, the Veteran specifically indicated that he did not have frequent trouble sleeping. Additionally, the Veteran was not diagnosed with obstructive sleep apnea until 1996. According to the Veteran's report, he stated that his sleep apnea began in the 90s, which again, is over 20 years after discharge from service. The examiner considered the Veteran's wife statement reporting snoring shortly after returning home from service. However, the examiner reasoned that severe snoring in and of itself does not prove the presence of OSA. The examiner also found that in this case, sleep apnea was not caused or aggravated, to include a functional impairment, by his service-connected depressive disorder and diabetes. The examiner noted that there is no medical literature to support the theory that depressive disorder and diabetes causes sleep apnea. Furthermore, there is no objective evidence of aggravation of the Veteran's sleep apnea beyond its natural course due to any cause. The Board finds that the examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data regarding the specific facts of this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran and his wife are competent to report symptoms that may be related to his sleep apnea, they are not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, his descriptions of symptoms since service, in and of themselves, is insufficient to establish service connection on the basis of continuity of symptomatology as obstructive sleep apnea is not deemed a "chronic" disease under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). As such, the criteria for both direct and secondary service connection have not been met and the Veteran's claim is denied. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a respiratory disorder, to include pulmonary embolism, deep vein thrombosis, and COPD, as secondary to service-connected carcinoma of the lung is remanded. As a preliminary matter, upon further review of the evidence, the board has recharacterized the Veteran's service connection to include DVT. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In the September 2021 addendum opinion, the examiner stated there were minimal limitations due to a partial lobectomy, but there is no current PFT to assess the veteran's true respiratory status. The examiner also stated the following: "[i]f the lung cancer diagnosis is conceded or continued, the relative contribution to pulmonary dysfunction can be determined by PFTs when protocols allow." Review of the Veteran's medical records do not show recent PFT, as indicated by the examiner. VA's duty to assist is not unlimited, but an examination opinion should be based on all procurable data. See Jones v. Shinseki, 23 Vet. App. 382 (2010). While the examiner discussed prior covid restrictions related to obtaining PFTs, it is unclear from the VA examiner's opinion whether all procurable and assembled evidence was considered that might reasonably assist in their medical analysis. Therefore, the matter is remanded for an addendum opinion with contemporaneous pulmonary function testing. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo an examination with an appropriate examiner to evaluate the Veteran's respiratory condition. This examination should include contemporaneous pulmonary function test. The examiner should opine whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's respiratory disorder, to include pulmonary embolism, deep vein thrombosis, and COPD is (1) caused by the service-connected carcinoma of the lung cancer, or (2) that the Veteran's service-connected carcinoma of the lung cancer has caused additional functional impairment of the pulmonary embolism, deep vein thrombosis, and COPD (e.g., a worsening of the respiratory symptoms beyond those expected by the baseline level of disability, even if temporary). The examiner should also opine as to whether there is any medical reason to accept or reject the Veteran's December 2020 private medical examiner's opinion that the Veteran's lung clots are directly related to agent orange exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.