Citation Nr: 21076138 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-28 409 DATE: December 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The Veteran's OSA began after service. 2. The Veteran gained approximately 80 pounds after service and is obese. 3. There is no relationship between the Veteran's OSA and his active service. 4. The Veteran's OSA is not related to exposure to certain chemicals during active service. 5. The Veteran's obesity is not caused or aggravated by the Veteran's service-connected trauma and stressor related disorder. 6. The Veteran's obesity is not caused or aggravated by the Veteran's service-connected left ankle fracture with arthritis. 7. The Veteran's OSA is not caused or aggravated by the Veteran's service-connected trauma and stressor related disorder. 8. The Veteran's OSA is not caused or aggravated by the Veteran's service-connected left ankle fracture with arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. The Veteran served on active duty in the Navy from November 1989 to October 1994. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and after three Board remands to the Agency of Original Jurisdiction (AOJ) ordering further medical examinations and opinions. Service Connection for OSA In general and pertinent part, the Veteran's trauma and stressor related disorder and left ankle fracture with arthritis are service-connected. The Veteran maintains that he also suffers from OSA syndrome caused by his military service. The Veteran was diagnosed with OSA in August 2014. He now advances several theories of service-connection for his OSA: direct service connection; direct service connection due to exposure to specific chemicals; secondary service connection related to his service-connected left ankle disability; secondary service connection related to his service-connected left ankle disability with obesity as an intermediate step; secondary service connection related to his service-connected mental disorder; and, secondary service connection related to his mental disorder with obesity as an intermediate step. Adequacy of VA Medical Examinations When VA provides a veteran a medical examination or seeks a medical opinion, the examination or opinion provided must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Adequate examinations or opinions are "based upon consideration of the veteran's prior medical history and examinations," Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), "describe[] the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one,'" id. (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)), and "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion," Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (per curiam). For the reasons discussed below, the VA medical examinations and medical opinions regarding the Veteran's claim are adequate to decide the claim. To the extent any examination has previously been found inadequate, those inadequacies were due to the failure to address a particular theory of entitlement and they do not negate the probative weight of the theories as to which opinions were offered. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains"). Direct service connection. A Veteran will be compensated for disability resulting from an injury or disease contracted in in the active military, naval, air, or space service. 38 U.S.C. §§ 1131. Generally, veterans seeking compensation for a service-connected disability must show: (1) a current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence establishes the first element. The Veteran was diagnosed with OSA after an August 2014 sleep study. However, a preponderance of the evidence shows the Veteran did not incur OSA or experience sleep disturbances during his service. While the Veteran competently described snoring at times during service, claims that he suffered from in-service sleeping disorder or difficulties are not supported by the evidence and are not credible. The Veteran affirmed he did not ever have or currently have "frequent trouble sleeping" on his reports of medical history when enlisting in August 1988, re-enlisting in January 1993, and separating from the military in September 1994. The Veteran's service treatment records support the Veteran's in-service assessments of his sleeping health and do not include any reported snoring or sleeping issues. The Veteran's medical affirmations, made contemporaneously with service and corroborated by his service treatment records, are given greater probative weight than later statements offered in support of compensation claims. See Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony). Moreover, the competent medical evidence fails to establish a relationship between the Veteran's reported snoring and current OSA. In June 2020, a VA examiner interviewed the Veteran, reviewed the Veteran's records, and offered a medical opinion regarding the Veteran's direct service connection claims. This VA examiner utilized the Acceptable Clinical Evidence (ACE) process "because the existing medical evidence supplemented with a telephone interview provided sufficient information on which to prepare" responses to the disability benefits questionnaire. Accordingly, the VA examiner considered the Veteran's medical history, prior examinations, as well as the Veteran's lay statements. The VA examiner concluded the Veteran's OSA was less likely than not (less than 50% probability) incurred in or caused by the Veteran's service. The VA examiner noted Veteran's large neck circumference and explained that the Veteran was diagnosed with sleep apnea 20 years after service and after gaining approximately 80 pounds (weighing 304 pounds). As the VA examiner explained the reasons for these conclusions based on an accurate characterization of the evidence of record, the opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, there is no contrary medical opinion in the evidence of record. In September 2020, another VA examiner evaluated whether the Veteran's OSA was caused or aggravated by a service-connected disability. Although this examination focused on secondary service connection claims, the VA examiner utilized the ACE process to review the Veteran's contentions and medical history. The VA examiner explained OSA's "clear and specific etiology." After highlighting obesity as a significant risk factor for OSA and noting the Veteran's 2014 sleep study body mass index (BMI), the VA examiner concluded "it is more than likely the Veteran's OSA is due to his morbid obesity." The VA examiner explained the reasons for this conclusion based on an accurate characterization of the evidence of record; therefore, the opinion is entitled to significant probative weight. Id. This opinion is consistent with the June 2020 assessment and there is no contrary medical opinion in the evidence of record. A preponderance of the evidence similarly shows the Veteran's current OSA was not caused by in-service chemical exposure. The competent medical evidence fails to establish the necessary causal relationship between the Veteran's OSA and in-service exposure to chemicals. The Veteran credibly claims to have been exposed to chemicals, specifically "toluene, benzines, trimethylbenzenes, xylenes, n-Hexane, electrical conductivity/static dissipator additives (SDAs), and corrosion inhibitors," during his active service. However, the Veteran is not competent to opine on the medical question of whether his OSA is related to chemical exposure during service. Such an opinion relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship and consequently beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's statements indicating a relationship between his current OSA and in-service chemical exposure are therefore not competent. To the extent they are competent, the specific, reasoned opinions of the VA examiner below are of greater probative weight than the Veteran's general lay assertions. In July 2021, after interviewing the Veteran, reviewing the Veteran's records, and consulting medical literature, a VA examiner opined that the Veteran's OSA was less likely than not caused by his active service, to include chemical exposure. The VA examiner found "no association with [sic] chemical exposure and sleep apnea." The VA examiner cited a medical study entitled "sleep apnea and occupational exposure to solvents," in support of this assessment. The VA examiner concluded "chemical exposure (exposure to toluene, benzines, trimethylbenzenes, xylenes, n-Hexane, SDAs and corrosion inhibitors) does not cause sleep apnea." No relationship between the Veteran's in-service chemical exposure and OSA is shown by competent medical evidence. Again, the VA examiner explained the reasons for these conclusions based on an accurate characterization of the evidence of record, with citation to relevant medical literature, the opinion is entitled to significant probative weight. See Nieves-Rodriguez at 304. No contrary medical opinion is found in the evidence of record. The elements required to establish direct service connection for the Veteran's claimed OSA are not supported by the evidence. As the preponderance of the evidence weighs against the Veteran's contentions, the benefit-of-the-doubt doctrine is inapplicable, and direct service connection for OSA is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Secondary service connection. Service connection may also be established on a secondary basis 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),(b). To establish service connection on a secondary basis, a veteran must 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 disease or injury. Id. Moreover, the evidence could raise a theory of secondary service connection with obesity as an intermediate step. See Garner v. Tran, 33 Vet. App. 241, 248 (2021). The following, non-exhaustive, factors are considered when determining whether such a theory has been reasonably raised: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service-connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. Id. In April 2015, the Veteran was granted service connection for specified trauma and stressor related disorder and left distal tibia and fibula fracture of the ankle with residual arthritis. The Veteran was prescribed Sertraline for his mental disorder. The Veteran contends that his OSA was caused or aggravated by his service-connected mental disorder and left ankle disability. In support of the claim related to his mental disorder, the Veteran referenced "numerous publications and studies which link Service Connected Mental Disorders to OSA" and specifically cited the National Institute of Health (NIH) article, "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans." Alternatively, the Veteran claims that his service-connected mental disorder or ankle disability caused or aggravated his obesity, which consequently caused or aggravated his OSA. While the Veteran contends that his OSA can be attributed to the above-mentioned causes, he is not competent to draw this conclusion. Determining whether the Veteran's OSA was caused or aggravated by any of his service-connected disability is a complex medical matter that falls well beyond the competence of lay witnesses like the Veteran. Jandreau, 492 F.3d at n. 4. Accordingly, the Veteran's statements suggesting a relationship between his current OSA and his service-connected disability or morbid obesity are not competent. To the extent the Veteran's statements can be considered competent, the specific, reasoned opinions of the VA examiners discussed below are of greater probative weight than the Veteran's general lay assertions. In September 2020, a VA examiner utilized the ACE process to evaluate the Veteran's claim that his OSA was caused or aggravated by his service-connected mental disorder. The VA examiner determined that the Veteran's OSA was less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected "other specified trauma and stressor related disorder." The VA examiner found no causal relationship between the Veteran's OSA and mental disorder in current medical literature. The VA examiner explained OSA's "clear and specific etiology." After reviewing the Veteran's 2014 sleep study and relevant medical resources regarding risk factors, the VA examiner correlated the Veteran's OSA to the Veteran's morbid obesity. The September 2020 VA examiner also reviewed the NIH article offered by the Veteran as support for his claim. The VA examiner discussed the article's reliability and applicability to the Veteran's claim. The VA examiner concluded that the article's study did not reliably establish causation between sleep apnea and PTSD. The VA September 2020 VA examiner also concluded that the Veteran's OSA was less likely than not aggravated by the Veteran's service-connected mental disorder. After considering the Veteran's date of diagnosis, initial sleep study, and statements, the VA examiner found "no objective evidence showing the Veteran's OSA has been aggravated beyond its natural progression." The VA examiner explained that the Veteran's OSA has been adequately controlled by continuous positive airway pressure (CPAP) and has not worsened. The September 2020 VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, including evidence submitted by the Veteran, and his opinions are therefore entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. There are no contrary medical opinions in the evidence of record. While the Veteran offered a medical article that generally supported his contentions, the medical opinions rendered by the September 2020 VA examiner that specifically address the Veteran's statements, claims, and medical history are more probative. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). The Veteran underwent another VA examination in July 2021. The VA examiner examined the Veteran in-person and reviewed the Veteran's records. The VA examiner opined that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's service-connected left ankle disability. The VA examiner considered the Veteran's statements explaining his left ankle pain thresholds. After a "thorough review of medical literature," the VA examiner was unable to find a causal relationship between the Veteran's OSA and service-connected left ankle disability. For the same reasons, the VA examiner found that the Veteran's OSA was less likely aggravated by his service-connected left ankle disability. No contrary medial opinions are found in the record. The VA examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, specifically addressing aggravation as well as causation, and her opinions are entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The elements required to establish secondary service connection for the Veteran's claimed OSA related to his service-connected mental disorder and left ankle disability are not supported by the evidence. As the preponderance of the evidence weighs against the Veteran's claim, the benefit-of-the-doubt doctrine is inapplicable, and his claim of secondary service connection for OSA is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. However, the evidence does reasonably raise obesity as an intermediate step to secondary service connection for the Veteran's OSA. Evidence suggests that Veteran may experience mobility limitations or reduced physical activity as a result of his service-connected left ankle disability as well as side effects of the medication prescribed for his service-connected mental disorder. Accordingly, the July 2021 VA examiner found that the "Veteran's obesity was unlikely caused by his mental health condition." The VA examiner noted that the Veteran was already considered obese at the time of his discharge, prior to his mental disorder diagnosis and use of anti-depressant medication. The VA examiner additionally noted the increase in the Veteran's body-mass index at the time of the 2014 sleep study and the low likelihood that sertraline causes significant weight gain. The VA examiner also found that the Veteran's obesity was less likely caused by his service-connected left ankle disability. The VA examiner explained that the Veteran can walk and stand for prolonged periods on his left ankle. Therefore, the VA examiner reasoned that Veteran's left ankle injury does not prohibit him from exercising. There are no contrary medial opinions on this subject in the record. The VA examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, and her opinions are entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. In August 2021, a different VA examiner reviewed the Veteran's claims file to assess whether the Veteran's service-connected mental disorder or left ankle disability aggravated the Veteran's obesity. This VA examiner first opined that the "Veteran's obesity was less likely than not aggravated by his service-connected condition of other specified trauma and stressor related disorder, to include medications such as sertraline that was used to treat his symptoms." In reaching this opinion, the VA examiner considered the Veteran's weight over time, the impact, if any, of the Veteran's prescription medication, and the Veteran's subsequent weight loss "despite continued treatment for his psychiatric disorder." The VA examiner also concluded that the "Veteran's obesity was less likely caused or aggravated by his service-connected left distal tibia and fibular fracture of the ankle with residual arthritis." The VA examiner outlined his rational for this determination. The VA examiner again considered the Veteran's weight as well as any physical limitations caused by the Veteran's left ankle disability. The VA examiner found no evidence to suggest the Veteran's left ankle disability impeded the Veteran's ability to exercise. The VA examiner cited a 2021 progress note that concluded "the Veteran continues to struggle with excessive weight despite the absence of limitations attributed to his left ankle condition." No contrary medical opinions are found in the record. The August 2021 VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, and his opinions are entitled to significant probative weight. Id. Again, there are no contrary medical opinions in the record. The elements required to establish secondary service connection, to include with obesity as an intermediate step, for the Veteran's claimed OSA related to his service-connected mental disorder and left ankle disability, are not supported by the evidence. As the preponderance of the evidence weighs against the Veteran's contentions in this regard, the benefit-of-the-doubt doctrine is inapplicable, and secondary service connection, to include with obesity as an intermediate step for OSA, is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals 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.