Citation Nr: 21075908 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-20 292A DATE: December 21, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for left shoulder degenerative joint disease (DJD) is denied. Entitlement to service connection for right shoulder DJD is denied. Entitlement to service connection for lumbar spine DJD is denied. Entitlement to service connection for right knee DJD and meniscus tear is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 2. The Veteran's left shoulder DJD did not have its onset in service and is not otherwise related to active duty. 3. The Veteran's right shoulder DJD did not have its onset in service and is not otherwise related to active duty. 4. The Veteran's lumbar spine DJD did not have its onset in service and is not otherwise related to active duty. 5. The Veteran's right knee DJD did not have its onset in service and is not otherwise related to active duty. 6. Hypertension was not manifest during service, within one year of service, and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for left shoulder DJD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for right shoulder DJD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for lumbar spine DJD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for right knee DJD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1966. This appeal comes to the Board from a June 2012 rating decision. The Board remanded these matters in February 2016, February 2018, and February 2020 for additional development. In February 2021, pursuant to the terms of a Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (CAVC or Court) vacated and remanded the February 2020 Board's decision to the extent that it denied the Veteran's claim for service connection for sleep apnea, including as secondary to a service-connected psychiatric disorder. Most recently, the Board remanded the claim of entitlement to service connection for sleep apnea, including as secondary to a service-connected psychiatric disorder, in June 2021 and the claims of entitlement to service connection for left and right shoulder degenerative joint disease with a history of rotator cuff repair; lumbar spine degenerative disc disease status-post (s/p) laminectomy; right knee degenerative joint disease and meniscus tear, s/p repair; and hypertension in April 2021 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The case has since been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"also called the "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38C.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) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38C.F.R. § 3.102. 1. Sleep Apnea The Veteran contends that his sleep apnea is due to service or is secondary to his service-connected psychiatric disorder. The Veteran's medical records show a diagnosis of sleep apnea in January 2006 after undergoing a polysomnography study. Thus, a current disability is shown. In regard to the nexus requirement, the Veteran's service-treatment records (STRs) do not contain any complaints of, treatment for, or diagnosis of any sort of sleep-related issues. According to a September 2012 VA examination, the Veteran reported a history of sonorous sleep per his wife as early as 1985. As this would have been after service, it is affirmative evidence that symptoms did not start during service. Regarding nexus, the medical records contain no indication that the condition is directly related to service. His primary contention is that his sleep apnea is secondary to his service-connected psychiatric disorder. On this question, the Veteran was provided a VA examination in September 2012, when the examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of his service-connected anxiety disorder. The examiner explained that the Veteran's STRs were silent regarding sleep apnea and objective findings in the record were consistent with obstructive upper airway disorder and not a central underlying psychiatric or neurological condition, which would be the case with a mental disorder. A February 2016 Board decision remanded the issue for an addendum opinion so that an examiner could address the issue of aggravation and consider studies submitted by the Veteran and his representative regarding incidence of sleep apnea being elevated in Veterans with PTSD. The Board notes that the Veteran is service-connected for anxiety disorder with depression and alcohol dependence (also claimed as PTSD, acquired psychiatric condition, obsessive compulsive disorder, panic attacks and sleep disorders). Pursuant to the February 2016 Board remand, the RO obtained a supplemental opinion in March 2017 regarding whether the Veteran's sleep apnea was related on a secondary basis to his service-connected psychiatric disorder. The examiner again found that it was less likely than not that the Veteran's sleep apnea was proximately due to or caused by his psychiatric conditions. The examiner reasoned that psychiatric conditions do not cause sleep apnea and there are no peer-reviewed, controlled studies that show a causative relationship between the two. The examiner noted that sleep apnea is often associated with obesity, alcohol use, and benzodiazepines, which the Veteran used in the past. Furthermore, the examiner stated that the Veteran was not describing any sort of sleep disturbance from anxiety and depression. The Board previously found that the opinion was inadequate to the extent the examiner did not address aggravation. Pursuant to the February 2018 remand, the RO obtained an addendum opinion. The November 2019 opinion found that the Veteran's psychiatric condition does not cause or aggravate his sleep apnea. The examiner explained the nature and etiology of the Veteran's sleep apnea, noting it results from a collapse of the pharyngeal airway during sleep, and the collapse is multifactorial but largely due to an interaction of easily collapsible upper airway, with the relaxation of the pharyngeal dilator muscles during sleep. The examiner further provided information that apneas and hypopneas are caused by the airway being sucked closed on inspiration during sleep, muscle tone falls, and airways narrow during sleep, causing snoring and apnea. The Board notes that the Veteran's sleep study showed the Veteran to have upper airway resistance syndrome. The examiner further explained that predisposing factors supported by the medical literature are conditions such as obesity, hypothyroidism, and acromegaly, as they narrow the upper airways. The opinion also noted the Veteran's history and reports that his sleep apnea symptoms improved. The examiner addressed aggravation by concluding that the Veteran's obstructive sleep apnea is due to the relaxation of his upper airway muscles, that there is no medical literature that supports the notion that a psychiatric condition worsens sleep apnea beyond its natural clinical course, and that there was no evidence to support even a temporary worsening of the Veteran's sleep apnea due to his service-connected psychiatric disorder. In February 2021, CAVC evaluated the Board's February 2020 decision and determined that the Board erred in its concluded that the duty to assist had been satisfied. Specifically, the Court determined that the medical evidence suggested alternate theories of entitlement which were accorded inadequate consideration. As the Court explained in Walsh v. Wilkie, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. 32 Vet. App. 300, 303 (2020). Notably, the Veteran has frequently reported weight gain as a side effect of oral medications prescribed to treat his service-connected psychiatric disorder. VA medical records document reports of depressive symptoms including "excessive appetite," a "sugar addiction," and low energy. As such, in June 2021, the Board remanded the claim to obtain a new examination to consider the medical evidence which suggests that the medications prescribed to treat the Veteran's service-connected psychiatric condition as a contributing factor or cause of obesity and led to the eventual diagnosis of obstructive sleep apnea. In July 2021, the Veteran underwent a VA examination for sleep apnea. His claims file was reviewed and he was diagnosed with obstructive sleep apnea. He reported onset of loud snoring, nightmares, panic, and a racing heart in the 1980s. He was diagnosed with sleep apnea in 1990. The examiner opined that the Veteran's sleep apnea is less likely as not incurred in or caused by sleep disturbances during active service. She explained that the STRs were silent of diagnosis or treatment for sleep apnea or sleep issues during active service. Observed snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing, and insomnia are not pathognomonic for sleep apnea. Sleep apnea is diagnosed by polysomnography. People will often have episodes of gasping or brief times of stopping breathing; however, less than 5 episodes per hour is considered normal. Insomnia is not a sign of sleep apnea and they are considered mutually exclusive as insomnia is a sleep disorder in which people have trouble sleeping. Also, the examiner opined that it is less likely than not that the Veteran's sleep apnea is proximately due to or the result of anxiety disorder with depression. The examiner explained that sleep apnea is a problem in which breathing pauses during sleep. This occurs because of narrow or blocked airways. When muscles in the upper throat relax during sleep, the tissues close in and block the airway. This stop in breathing is called apnea. Obstructive sleep apnea (OSA) is a common clinical condition characterized by repeated episodes of apnoea and hypopnea during sleep. Review of medical literature demonstrates classes of medications that can worsen OSA. Specifically, a recent 2020 Journal of Obesity article indicated that many conditions are associated with obesity; however, the data available cannot confirm increased BMI caused the disease. Exercise, nutrition, insulin resistance, and weight stigma are factors that partially or fully explain BMI and health. Obesity can increase risk, but cannot be shown to have causality as genetic and involuntary environmental contribution to body weight outweigh the voluntary lifestyle choices. Therefore, the examiner opined that the Veteran's obesity is not shown to be an intermediate step between his service-connected disabilities and his sleep apnea. The Board finds the July 2021 opinion to be highly probative. The examiner's opinion was factually accurate, fully articulated, and provided sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In addition, the examiner took into consideration the Veteran's lay statements and contentions regarding the onset and continuity of his sleep apnea. Id. The Board finds that the Veteran's statements related to his symptoms of snoring and disruptive sleeping are competent. However, the Board notes that the most recent VA examiner did not find these symptoms in the Veteran's case to be diagnostic of sleep apnea. This issue is medically complex, as it requires knowledge of the risk factors for sleep apnea, plus the understanding of complex medical systems and diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the July 2021 VA examiners' opinion. Relatedly, the Veteran submitted medical articles addressing the relationship between PTSD and sleep apnea. This generic medical text does not apply medical principles regarding causation or etiology to the facts of the instant Veteran's case, so does not provide sufficient evidence, standing alone, to serve as the basis for an award of service connection. See McCray v. Wilkie, 31 Vet. App. 243, 255 (2019). Overall, the Board finds that the claim must be denied. The preponderance of the evidence weighs against a finding that the Veteran's obstructive sleep apnea was incurred in service or is secondary to his service-connected psychiatric disorder. Accordingly, service connection for this condition is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Bilateral Shoulder, Lumbar Spine, and Right Knee Disorders The Veteran seeks service connection for a bilateral shoulder disorder, lumbar spine disorder, and right knee disorder that he asserts are due to parachute jumping during military service. On VA examination in February 2012, the VA examiner noted that the Veteran had a diagnosis of rotator cuff injury status post repair of the right shoulder in 1989 and of the left shoulder in 1991, degenerative disc disease (DDD) status post laminectomy in 1982, and a right knee meniscus tear status post repair in 2001. On examination, the examiner indicated that the Veteran had a diagnosis of DJD of the bilateral shoulders, intervertebral disc syndrome (IVDS) of the lumbar spine, and degenerative joint disease (DJD) of the right knee. In February 2016 the issues were remanded to address the Veteran's parachute jumping during service, and in February 2018 in order to address the inconsistencies in diagnoses between the prior two examinations and lack of rationale for the opinions. Pursuant to the February 2018 remand, the RO obtained addendum opinions regarding the Veteran's orthopedic issues listed above. All three opinions regarding the Veteran's bilateral shoulders, back, and right knee conditions attribute the conditions to the Veteran's age and conclude that they are not related to service as the STRs are silent for injuries relating to them and the Veteran only did five parachute jumps while in service. In February 2020, the Board remanded the claims for a VA examiner to address whether it is at least as likely as not that the Veteran's bilateral shoulder, lumbar spine, and right knee disabilities began in or are etiologically related to any incident of the Veteran's military service, to include parachute jumping. Unfortunately, the September 2020 opinions VA obtained are inadequate because the VA examiner stated generally what types of injuries occur with parachute jumps without relating this generality in any way to the Veteran. In August 2021, a VA examiner opined that the Veteran's back conditions, bilateral shoulder joint arthritis and rotator cuff pathology, and right knee DJD are less likely than not due to active service. The examiner explained that there was a period of over 20 years between the Veteran's separation from service and the Veteran requiring an evaluation for low back pain, shoulder pain, and right knee pain. During these 20+ years, the Veteran stated clearly and plainly that he remained very physically active and participated in many physically exertive sports that placed additional mechanical stressors on his back. In addition to the time elapsed since his exit from service and the need for evaluation for low back pain, the Veteran's separation examination noted no recurrent back pain and no trick or locked knee. Repetitive stress trauma for a person of the Veteran's age is well-established to be a prominent contributory factor in the pathogenesis of orthopedic back/spine disease, including all currently diagnosed lumbar spine and related contributions in this case. The Board finds the August 2021 opinion to be highly probative. The examiner's opinion was factually accurate, fully articulated, and provided sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board finds that the Veteran's statements related to his symptoms of back pain, bilateral shoulder pain, and right knee pain are competent. However, the Board notes that the most recent VA examiner did not find these symptoms in the Veteran's case to be causally related to the Veteran's current conditions. This issue is medically complex, as it requires knowledge of the risk factors for sleep apnea, plus the understanding of complex medical systems and diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the August 2021 VA examiners' opinion. Overall, the Board finds that the claims must be denied. The preponderance of the evidence weighs against a finding that the Veteran's bilateral shoulder disability, lumbar spine disability, and right knee disability were incurred in service. Accordingly, service connection for these conditions is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Hypertension The Veteran contends that his hypertension is due to his time in service, or is related on a secondary basis to service-connected psychiatric condition. The Veteran's STRs reveal that on a November 1963 entrance examination, his blood pressure reading was 138/74. The STRs show that on his November 1966 discharge examination, the Veteran denied having high or low blood pressure. The blood pressure reading was 130/88. Physical examination revealed normal findings. At separation, the Veteran denied having high blood pressure. Pursuant to the February 2016 Board remand, the Veteran was afforded a March 2017 VA examination regarding whether it was at least as likely as not that his hypertension was caused or aggravated by his service-connected psychiatric disorder. As noted in the February 2016 Board remand, in a letter dated in August 2014, the Veteran's representative cited to a research study regarding an increase in blood pressure in individuals who have been exposed to stressful events. The Veteran is currently service-connected for anxiety disorder with depression and associated alcohol dependence as a result of stressful events experienced in service. The March 2017 VA examiner did not address the research study cited by the Veteran's representative in the August 2014 letter when opining as to whether it was at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected psychiatric disorder. In September 2020, a VA examiner opined that the Veteran's hypertension is not proximately due to or the result of anxiety disorder with depression. Medical literature does not support the causal relationship between hypertension and mental health disorders. Also, there was no objective medical evidence to support that the Veteran's hypertension was aggravated by his service-connected psychiatric disorder. Notably, his blood pressure is better in control since medications were adjusted. In April 2021, the Board found that the September 2020 VA examiner did not use the correct legal standard when analyzing aggravation. Therefore, an additional opinion was requested. In August 2021, a VA examiner opined that there is no fashion by which to determine the natural progression of hypertension as the degree of hypertension and its resultant manifestations are multivariate in origin. No standard progression of hypertension exists that can be qualitatively or quantitatively measured. In addition, there is no manner by which to assign exclusive causality to any increased manifestations suspected to be secondary to hypertension. Such determinations would be merely speculative in nature due to a deficiency in general medical knowledge. Therefore, the examiner was unable to assign causality with any degree of non-speculative certainty that there was aggravation of hypertension second to any in-service event, nor could she state that it was no aggravated. The question cannot be answered in any objective fashion due to the state of medical knowledge. The Board finds the August 2021 opinion to be highly probative. The examiner's opinion was factually accurate, fully articulated, and provided sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board finds that the Veteran's statements related to his symptoms of increased heart rate are competent. However, the Board notes that the most recent VA examiner did not find these symptoms in the Veteran's case to be causally related to the Veteran's current conditions. This issue is medically complex, as it requires knowledge of the risk factors for hypertension, plus the understanding of complex medical systems and diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the August 2021 VA examiners' opinion. Overall, the Board finds that the claim must be denied. The preponderance of the evidence weighs against a finding that the Veteran's hypertension was incurred in service or is secondary to his service-connected psychiatric disorder. Accordingly, service connection for this condition is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.