Citation Nr: 21075232 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-62 571 DATE: December 17, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis, is denied. FINDING OF FACT There is no probative evidence of record that the Veteran's OSA disability was caused or aggravated by his rheumatic fever with heart involvement and rheumatoid arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1955 to July 1955 and from October 1958 to December 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and April 2021, the Board remanded this appeal for further evidentiary development. Most recently, in August 2021, the Board remanded this appeal for further development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis The Veteran contends that his diagnosed obstructive sleep apnea (OSA) is secondary to his service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis. In the alternative the Veteran contends that his OSA is caused by his obesity, and that his obesity was a result of not being able to exercise due to his service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis. See February 2017 Notice of Disagreement, November 2017 Form 9. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current OSA disability that is proximately due to or the result of or was aggravated beyond its natural progress by the Veteran's service-connected disabilities, to include residuals of rheumatic fever with heart involvement and rheumatoid arthritis. In the present case, the Veteran's diagnosis of OSA was confirmed in a December 2016 Sleep Apnea VA examination. Thus, there was evidence that the Veteran had a OSA disability. In September 2012 the Veteran's doctor considered doing a sleep study but urged the Veteran to become complaint on working on dietary changes. The examiner noted that the Veteran was morbidly obese. In a March 2013 treatment note, the examiner noted that the Veteran had mild obstructive sleep apnea, that could be treated by a CPAP, doing nothing, or weight loss. The Veteran opted to try to lose weight. In a May 2015 private treatment note, the examiner indicated that the Veteran was obese, had sleep apnea, and qualified for a night study. The Veteran had a sleep study in May 2015 that diagnosed the Veteran with obstructive sleep apnea. The Veteran was advised to increase physical activities as much as possible. In December 2016 the Veteran was afforded a VA examination for his sleep apnea. At the examination, the Veteran reported onset of sleep apnea in 2010 and stated he was first diagnosed with sleep apnea in a private sleep study in 2013. The examiner noted that the Veteran's condition now requires a CPAP. The examiner opined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that the Veteran was not diagnosed with sleep apnea for 36 years and there is no objective medical evidence to confirm a diagnosis or treatment for sleep apnea during military service. The Veteran stated that he is on oxygen because of his heart condition as well and must use an oxygenator attached to his CPAP machine. See February 2017 Notice of Disagreement. In an undated letter that was received in February 2017, the Veteran's doctor stated that the Veteran had been diagnosed with COPD requiring oxygen nocturnally, atrial fibrillation s/p ablation, coronary artery disease, congestive heart failure, and obstructive sleep apnea. The examiner indicated that the Veteran uses a CPAP machine at night due to the amount of strain it places on his heart. The examiner indicated that the use of the CPAP machine is absolutely necessary for both his cardiac and pulmonary conditions. In October 2017, VA secured a medical opinion regarding the Veteran's sleep apnea. After reviewing the record, the examiner opined that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected residual of rheumatic fever with heart involvement and rheumatic arthritis. As to the rationale, the examiner explained that thematic fever is an autoimmune disease that may occur after a group A streptococcal throat infection that causes inflammatory lesions in connective tissue, especially that of the heart, joints, blood vessels, and subcutaneous tissue. The disease has many symptoms and can affect different parts of the body including the heart, joints, skin, and brain. The examiner then explained the symptoms of rhematic fever. The examiner contrasts the rheumatic fever with OSA. Specifically, that OSA occurs when the muscle in the back of the throat relaxes which causes the airway to narrow. The examiner stated that that there is no clinical evidence that directly links sleep apnea to rhematic fever, so therefore, the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of due to the result of the residual of rheumatic fever with heart involvement and rheumatic arthritis. In October 2019, VA secured a medical opinion for the Veteran's sleep apnea. After a review of the record, the examiner marked the box that the Veteran's sleep apnea was less likely (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner indicated that obstructive sleep apnea is significantly higher in mitral stenosis which the Veteran has documented for many years, however it is mild and not as significant of a problem as aortic valve problem and mechanism of this is not clear. The Veteran has a history of rheumatic fever which presumably caused rheumatic heart disease and it in turn caused mitral stenosis. The examiner concluded that it is less likely than not that obstructive sleep apnea, which is documented after documented valvular heart disease is secondary to residuals, rheumatic fever with heart involvement. The examiner opined that it is less likely than not that the Veteran's obstructive sleep apnea was aggravated beyond its natural progression by his service-connected rheumatic fever with heart involvement and rheumatoid arthritis, because there is no evidence it existed before rheumatic fever with heart involvement and rheumatoid arthritis. In May 2021 VA secured addendum medical opinions for the Veteran's sleep apnea. The examiner opined that it is less likely than not, (less than 50 percent probability) that the Veteran's OSA has a nexus related to service. As to the rationale, the examiner explained that there were no reported symptoms with obstructive sleep apnea in the greater than 30 years from separation from service and the onset of symptoms. The examiner also opined that it is less likely than not, a (less than 50% probability) that the Veteran's service-connected rheumatic fever is related to, contributed to, or aggravated the veteran's sleep apnea beyond its natural progression. The examiner listed the causes and complications of acute rheumatic fever (ARF) and then concluded that there was no research or evidence that shows rheumatic fever is a risk factor for obstructive sleep apnea. The examiner then listed the causes of rheumatoid arthritis and concluded that there is no research or evidence that shows rheumatoid arthritis or arthritis secondary to a viral infection. Finally, the examiner explained the causes of obstructive sleep apnea and its risk factors. The examiner stated that OSA is "a disorder that is characterized by obstructive apneas, hypopneas, and/or respiratory effort-related arousals caused by repetitive collapse of the upper airway during sleep. The examiner also explained that the risk factors for OSA include older age, male gender, obesity, Craniofacial and upper airway abnormalities, smoking, family history of snoring or OSA, and nasal congestion. The examiner stated that the veteran's assertion that that "his heart and lung condition affect his obstructive sleep apnea is reversed. OSA may worsen many health conditions to include lung and heart conditions, but not arthritis. Conversely, most if not all, of these conditions do not worsen, aggravate or cause OSA." The examiner reiterated that there was no evidence of an event, illness or exposure in service causing OSA for the Veteran. In addition, neither rheumatic fever, nor rheumatoid arthritis are related to aggravation of OSA. Finally, the examiner explained that the Veteran's OSA is most likely caused by his obesity, which the Veteran has been told to by his treatment providers. Specifically, a "10% weight loss can result in significant improvement up to 50 in sleep apnea and that 20% or more can eliminate sleep apnea." The Board notes that, although service connection is not allowed for obesity on its own, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The VA General Counsel has indicated that establishing service connection in a case such as the Veteran's requires resolution of three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. Id. In a more recent decision, the Court modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Therefore, in September 2021, VA secured an addendum opinion to address the Veteran's contention that his service-connected disabilities impacted his ability to exercise, which led to his obesity. The examiner thoroughly reviewed and noted the relevant evidence. The examiner opined that it is less likely than not, a less than 50% probability, that the Veteran's residuals of rheumatic fever with heart involvement and rheumatoid arthritis caused him to become obese or aggravated his obesity, whether by interfering with his ability to exercise or otherwise. As to the rationale, the examiner explained that there is no evidence in the records that leads the examiner to believe the Veteran was advised not to exercise, but just the opposite, that his obesity and poor diet contributed to his other health problems as well as a decrease in exercise. The examiner explained that exercise is a component of weight loss, however, the main component is diet or caloric intake, especially as compared with output. The examiner noted that the September 2012 Coastal Carolina Health Care Cardiology treatment notes reveal that the Veteran admitted that he "drinks too much of the weekend he doesn't eat many dieter discretion. His wife reviewed the role model for him, but he just doesn't follow it." The only evidence of record linking the diagnosed OSA to a service-connected disability was the Veteran's lay statements asserting that the OSA was secondary to the service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis, or that his obesity was secondary and caused his OSA. Although the Veteran is considered competent to report symptoms observable through the senses, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not considered competent to provide a nexus opinion regarding the issue. The issue is medically complex, as it requires knowledge of the anatomical relationships between different parts of the body and of the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the Veteran's statements did not and do not constitute competent evidence that the diagnosed OSA was caused or aggravated by the service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis, or that his service-connected disabilities caused his obesity. Consequently, the Board gives more probative weight to medical evidence. The Board considered the Veteran's lay testimony, private treatment records, and VA examinations and found that the most probative evidence included the May 2021 and September 2021 VA examinations. In May 2021, the VA obtained a medical opinion regarding etiology of the Veteran's OSA. The VA medical opinion is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his OSA in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The medical opinion concluded it is less likely than not that the Veteran's OSA is related to his period of active service. The medical opinion also determined it was less likely than not that the Veteran's OSA was caused or aggravated by his service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis. However, the opinion also noted that the most likely cause of the Veteran's OSA is obesity. Further, the opinion discussed a May 2015 treatment note reporting that a 10 percent decrease in weight would significantly improve the Veteran's OSA, and that a 20 percent decrease in weight might eliminate OSA completely. The VA examiner in September 2021 found that the Veteran's service-connected disabilities did not cause him to become obese or aggravate his obesity, whether by interfering with his ability to exercise or otherwise. The September 2021 VA medical opinion is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it addressed the three issues determining if there is "intermediate step" to establish service connection. The steps are (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. The examiner explained that there is no evidence in the record that the Veteran was advised not to exercise due to his service-connected disabilities, and the opposite was actually true. The Veteran himself also admitted that he did not follow the dietary plans prescribed by his treatment providers. The examiner stated, "The records show the veteran clearly went against medical advice to change his diet and was noncompliant with his diet and behavior modification. As for exercise reduction his COPD, stroke syndrome, and any symptoms from his poorly controlled diabetes, such as fatigue, contributed to this reduction." Thus, based on the examiner's statements steps one and two are not met because the Veteran's service-connected disabilities did not cause the Veteran to become obese, but his disregard in following his doctor's treatment plans may have caused him to become obese. The examiner concluded that it was less likely than not, a less than 50% probability, that the Veteran's residuals of rheumatic fever with heart involvement and rheumatoid arthritis caused him to become obese or aggravated his obesity, whether by interfering with his ability to exercise or otherwise. Finally, step three is not met because the examiner indicated that the Veteran's obesity was caused by his non-compliance with doctor's orders versus the Veteran's service-connected residuals of rheumatic fever with heart involvement and rheumatoid arthritis. The examiner indicated that the Veteran's rheumatic fever with heart involvement and rheumatoid arthritis did not aggravate his obesity, and there is no evidence that the Veteran's rheumatic fever with heart involvement and rheumatoid arthritis disability interfered with him exercising. The examiner did however state that the Veteran's COPD, stroke syndrome, and poorly controlled diabetes (which are not service connected) may have contributed to reduction of exercise. However, there is no evidence in the record indicating that the Veteran was advised not to exercise or improve his diet. The examiner stated that a large body of observational data show an associated between higher levels of physical activity and lower rates of many chronic disease. The examiner also stated that, the management of overweight and obesity includes a combination of dietary changes, increased physical activity, and behavior modifications. There is evidence throughout the record that the Veteran's doctors have indicated that if the Veteran would lose weight, he could improve or eliminate his OSA disability. In addition, his private treatment provider indicated that he predicted back in September 2012 that the Veteran would have another cerebral ischemic event or coronary ischemic event and stressed the Veteran must be bili compliant. In summary, there is no probative evidence of record that the Veteran's OSA disability is caused or aggravated by his rheumatic fever with heart involvement and rheumatoid arthritis disability. In addition, there is no probative evidence that the Veteran's obesity was caused or aggravated (interfered with the Veteran's ability to exercise) by his rheumatic fever with heart involvement and rheumatoid arthritis. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a OSA disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.