Citation Nr: 21075718 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-38 940A DATE: December 21, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a headache condition is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran's sleep apnea did not have its onset during his active duty military service, is not due to an in-service event, injury, or illness, and was not caused or aggravated beyond its natural progression by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1974 to July 1978. He also served on active duty for training (ACDUTRA) in August 1980, September 1981, July 1983, September 1984, from August to September 1986, from August to September 1987, from May to December 1988, from August to September 1989, June 1990, August 1991, July 1992, August 1993, and July 1994, with additional periods of inactive duty for training (INACDUTRA), in the Naval Reserves. The issues on appeal were most recently before the Board in April 2021, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of the issues in an August 2021 Supplemental Statement of the Case and returned the case to the Board. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service injury or disease. See e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. The Board notes that a layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms which supports a subsequent diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he is entitled to service connection for sleep apnea, as the condition had its onset during his active duty service, or was otherwise due to or aggravated by his service-connected persistent depressive disorder. The record reflects that the Veteran has a current diagnosis of obstructive sleep apnea (OSA), and the first prong of the criteria for service connection has been met. Thus, the Board must now determine whether such diagnosis is related to his military service or a service-connected disability. In July 1974, March 1978, June 1978, May 1982, June 1983, March 1986, May 1987, November 1987, November 1988, November 1989, and October 1992 reports of medical history, the Veteran indicated that he did not have frequent trouble sleeping, and no note of sleep apnea or any symptoms of a sleep disorder were recorded on an accompanying July 1974, April 1976, March 1978, June 1978, May 1982, June 1983, March 1986, May 1987, November 1987, November 1988, November 1989, and October 1992 examinations. He did not respond to the question of whether he had a history of frequent trouble sleeping in a January 1984 report of medical history, but difficulty sleeping was not otherwise noted on the report of an accompanying examination. In an August 1998 private sleep disorder evaluation, the Veteran reported that he had snored "for years," that his friends had noted instances of apnea, and that he sometimes woke himself up "choking and not breathing." The examiners noted that he had gained 70 pounds over the prior 10 years, and that he worked somewhat irregular hours. After overnight polysomnography testing, the examiners diagnosed him with obstructive sleep apnea, and listed obesity as an associated diagnosis. The examiners recommended a home trial of a CPAP machine, along with weight loss. The examiner also recommended examination by an otolaryngologist to help exclude any specific airway abnormality as a causative factor. The diagnosis was again confirmed in an October 2002 private polysomnogram. In a December 2019 examination, the Veteran reported an onset of sleep apnea symptoms in 1976. He noted that he had a sinus condition "due to low pressure training technician," and his friends noticed that he was snoring and stopped breathing while he was sleeping. He indicated that he did not visit a doctor or treat himself, and instead saw "the staff" for his sinus condition, and that his condition had worsened since its onset. The examiner opined that it was less likely than not that the Veteran's OSA was incurred in or caused by his service. The examiner stated that there was no evidence of sleep apnea or reported symptoms suggestive of sleep apnea in his service treatment records. In a September 2020 medical opinion, the examiner documented the 1998 and 2002 private sleep studies, as well as treatment records from 2014 to 2019 which indicated that he showed improvement of his symptoms with use of a CPAP machine. The examiner opined that it was less likely than not that his condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there was no objective evidence of a sleep disorder during his service, and noted that while he was competent to report his symptomology, he was not competent to diagnose a condition based on those symptoms. The examiner reported that snoring was a condition which could exist as a symptom of sleep apnea or a separate diagnosable condition without a diagnosis of sleep apnea. The examiner stated that it was not until 10 years after his separation from service that he was diagnosed with sleep apnea. The examiner further opined that it was less likely than not that the Veteran's sleep apnea was due to his service-connected persistent depressive disorder. The examiner indicated that though research had found a statistical relationship between the two conditions, in that they occur as co-morbid conditions at a higher-than-expected rate, there were no longitudinal studies that established depression as a causal factor for OSA. The examiner also opined that his OSA was not related to his back or right ankle disabilities. The examiner claimed that those musculoskeletal disabilities had no medical nexus related to the etiology of sleep apnea, and that while pain from orthopedic injuries could disrupt sleep, those symptoms merely overlapped with symptoms due to OSA, and there was no etiological or pathophysiological relationship between the two. Finally, the examiner opined that the Veteran's OSA was less likely than not aggravated beyond its natural progression by his depression. The examiner reported that his medical records did not support aggravation of his OSA, and showed that when he had good compliance with use of his CPAP machine, his sleep apnea symptoms improved. The examiner also noted that his OSA had been stable since treatment with a CPAP machine was initiated, and concluded that there was no medical nexus for any aggravation. In an August 2021 medical opinion, the examiner opined that the Veteran's OSA was less likely than not incurred in or caused by his claimed in-service injury, event, or illness. The examiner stated that the entire claims file, including his lay statements, was reviewed, and that while his statements provided important information, they did not provide evidence of a diagnosis. The examiner documented that his service treatment records were silent for complaints or treatment of OSA during service, and that literature supported that OSA was a structural upper airway obstruction during sleep. The examiner noted that risk factors for OSA included obesity, gender, age, and upper airway crowding due to conditions such as enlarged tonsils. The examiner reported that he weighed 200 pounds at the time of his separation in November 1988, with a BMI of 27.5, and weighed 265 pounds at the time of the October 2002 sleep study, with a BMI of 37. The examiner indicated that a BMI equal to or greater than 30 was considered as obese. The examiner concluded that a nexus was not established. The examiner further opined that his OSA was less likely than not due to or aggravated by a service-connected condition. The examiner stated that while mental health conditions, such as depression, and OSA could co-exist, the literature did not show a direct causal relationship between the two conditions. The examiner also noted that use of a CPAP machine showed improvement of his OSA symptoms, and there was no evidence of aggravation beyond the natural progression of the condition by a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's OSA is due to or was aggravated by his military service, or is due to or aggravated by a service-connected disability. Although he reported that his symptoms had an onset in 1976, and that his friends informed him that he stopped breathing when he slept, there is no objective evidence present in his service treatment records indicating that he experienced symptoms of OSA prior to 1998. To the contrary, the Veteran denied frequent trouble sleeping in the May 1982, June 1983, March 1986, May 1987, November 1987, November 1988, November 1989, and October 1992 reports of medical history. Additionally, the medical evidence of record frequently associates weight gain with his condition, with significant weight gain occurring after his separation from service in 1988. Moreover, at no point in his numerous examinations during active duty service or ACDUTRA did he report difficulty sleeping, and was not noted to have symptoms of OSA. He did not report any specific injury or illness which caused the condition, and there is no such injury or illness apparent from the record. Further, although the September 2020 and August 2021 examiners indicated that there was a statistical relationship between the occurrence of OSA and depression, the examiners noted that there was no longitudinal study showing that depression caused OSA. Also, the examiner reported that the severity of his symptoms was affected by his usage of a CPAP machine, with the severity decreasing when the machine was used, but did not indicate that the severity of his symptoms was in any way contingent on the severity of his depression symptoms. Moreover, the September 2020 examiner indicated that his musculoskeletal disabilities could result in sleep disruption and produce symptoms which could overlap with those of his OSA, but concluded that OSA is etiologically unrelated to such musculoskeletal disabilities and that there was no relationship between the two. Thus, while the Veteran is competent to report symptoms of his OSA that are readily apparent to a layperson, there is no indication from the record that he has the education or training necessary to diagnose OSA. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). The medical evidence of record is against his claim and does not signify that the onset of his OSA was during his active duty service, or was otherwise related to an in-service event, injury, or illness. Moreover, he has not provided any evidence contradicting the September 2020 and August 2021 examiners' opinions that his depression did not cause or aggravate his condition, which the examiners supported with medical literature. The Board also notes that while weight gain was implicitly associated with his sleep apnea, obesity is not considered a disease or disability for VA purposes and is not subject to service connection, VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a disease for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). In particular, VAOPGCPREC 1-2017 concluded that obesity may be an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused or aggravated the Veteran to become obese; that obesity was a substantial factor in causing or aggravating a secondary disability; and the secondary disability would not have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017); Walsh v. Wilkie, No. 18-0495, 2020 U.S. App. Vet. Claims LEXIS 295 at *14-15 (Feb. 24, 2020). In this regard, the Board notes that the Veteran had a previous claim for service connection for an eating disorder, relating his weight gain to a psychiatric condition, that was denied in a September 2004 rating decision. He did not appeal that decision and has not otherwise requested to reopen that claim or asserted that a service-connected condition caused his weight gain. Thus, it cannot be said that a service-connected disability caused him to become obese, and subsequently caused or aggravated his OSA. Finally, the Board notes that the Veteran is not service connected for any sinus condition, and the record does not indicate that any such condition was diagnosed during service. Additionally, there is no indication that he was treated for chronic or frequent symptoms which could be readily attributed to a sinus condition. Though he reported a history of ear, nose, or throat trouble in a May 1982 report of medical history, no sinus condition was documented, and his sinuses were found to be normal on examination. Otherwise, the only remaining evidence of complaints of or treatment during his service was in a January 1978 treatment record where he was assessed with possible reactive rhinitis secondary to drying left serous otitis media. A record from the following day documented that his reactive rhinitis symptoms were resolving, he was "feeling much better," and he was able to clear his ears without problem. While no negative medical opinion of record elaborates on the Veteran's claim of a sinus condition during service as it relates to the development of OSA, the Board finds that remand for an addendum opinion is not necessary based on the facts available. Under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. Though the Veteran has a current diagnosis, the Board finds that a single instance of rhinitis during service, which was deemed as reactive to an ear infection, is insufficient to qualify as an event, injury or disease during service. Further, there is no indication from post-service medical records that his currently diagnosed OSA is related to a chronic sinus condition. Ultimately, the preponderance of the evidence is against a finding that he had an in-service event, injury, or illness that could be related to his OSA, and further development of the evidence is unnecessary. Therefore, the preponderance of the evidence is against the Veteran's claim; as such, the benefit-of-the-doubt doctrine is not applicable, and the claim for service connection for sleep apnea must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a headache condition is remanded. The Veteran contends that he is entitled to service connection for a headache condition, as the condition had its onset during his active duty service or is due to or aggravated by a service-connected disability. As noted above, VA recently obtained a medical opinion regarding the etiology of his claimed condition in August 2021; however, the Board finds that further clarification of that opinion is necessary before a decision can be rendered on his claim. In the August 2021 opinion, the examiner noted that an April 1976 report of medical history indicated a history of frequent or severe headaches, and documented headaches in early childhood. The examiner further noted that March and June 1978 reports of medical history also listed a history of frequent or severe headaches, and noted that the Veteran experienced headaches during childhood. The examiner concluded that the claims file suggested that a headache condition pre-existed his military service and that a nexus was not established. Under pertinent law and regulations, a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111 (2018). When no preexisting condition is noted upon entry, the veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C. § 1111. Here, because the July 1974 entrance examination is silent for any headache diagnosis, the Veteran is presumed sound upon entrance. Because there is no medical opinion of record that addresses the necessary questions, he should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The VA examiner must address the presumption of soundness and provide an opinion as to whether there is clear and unmistakable evidence that any headache disability preexisted his military service and, if so, whether there is clear and unmistakable evidence that it was not aggravated (permanently worsened beyond its natural progression) during service. 2. Entitlement to service connection for hypertension is remanded. The Veteran contends that he is entitled to service connection for hypertension, as the condition had its onset during his active duty service or is due to or aggravated by a service-connected disability. As noted above, VA recently obtained a medical opinion regarding the etiology of his claimed condition in August 2021; however, the Board finds that the examiner failed to address all relevant evidence of record in forming an opinion, and the opinion is therefore inadequate. In the August 2021 opinion, the examiner noted many of the Veteran's historical blood pressure readings dating back to his entry into service in July 1974. The examiner opined that his hypertension was less likely than not incurred in or caused by his claimed in-service injury, event, or illness, and stated that a review of his medical records did not support his lay testimony regarding an onset of hypertension during his service. The examiner documented that he had one isolated, elevated blood pressure reading of 140/96 in January 1984, which was not during a period of active duty service. The examiner further stated that subsequent blood pressure readings during active duty service in 1988 were normal, and that he was noted to have borderline hypertension in a 1992 dental examination. The examiner indicated that his blood pressure readings were not consistently elevated until 1994, approximately six years after his last period of service, and concluded that there was no established medical nexus related to service. While the examiner generally addressed the majority of the Veteran's treatment records surrounding the onset of his hypertension, the Board notes that an April 1992 report of medical history stated that he had a past history of hypertension, which was now controlled. Although this is not conclusive evidence that he developed hypertension during a period of active duty service, the Board notes that it represents probative evidence that his hypertension was diagnosed prior to 1994, and must be addressed before the Board can render a decision on the issue. Therefore, remand is necessary so that an addendum opinion can be obtained which adequately addresses all relevant evidence of record. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA headaches examination. The record and a copy of this Remand must be made available to, and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following questions: a) Did the Veteran's current headaches disability clearly and unmistakably (obvious or manifest) preexist his entry into active duty service in 1974. In this regard, the Board notes that no headache disability was noted on his July 1974 entrance examination. The examiner's attention is also drawn to the April 1976 report of medical history indicating headaches in early childhood, as well as the March and June 1978 reports of medical history wherein he listed a listed a history of frequent or severe headaches, and that he experienced them during childhood. (i) If the answer to the above question is "YES," is it also clear and unmistakable (i.e. undebatable) that such disability was NOT aggravated beyond its natural progression during the Veteran's active service? (ii) If the answer to either question (i) or (ii) is "NO," then assume as true that the disability did not pre-exist service. With this understanding, is it at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in, or is otherwise related to his period of active duty service. b) Regardless of any opinion provided above, is at least as likely as not (50 percent or better probability) that the Veteran's current headache disability was caused OR aggravated by his service-connected depressive disorder? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service and continuity of symptomatology. A clearly-stated rationale for any opinion offered should be provided. The clinician should also discuss treatment records indicating the onset and/or frequency of headaches due to stress, sleep disturbances, or musculoskeletal disabilities as they pertain to potential aggravation of any headache condition. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The clinician is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the clinician is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The clinician must provide a comprehensive rationale for all opinions expressed. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 2. Make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of the Veteran's hypertension. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that his hypertension is related to his military service, to include as having its onset during a period of active duty service or as being due to a service-connected disability. In doing so, the clinician should specifically discuss the 1992 examination noting a history of hypertension. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The clinician is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the clinician is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The clinician must provide a comprehensive rationale for all opinions expressed. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 3. Thereafter, readjudicate the issues on appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.