Citation Nr: 21076197 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-42 453 DATE: December 22, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. Service connection for diabetes mellitus, type II (DM) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from May 1955 to March 1959, with periods of Active Duty for Training (ACDUTRA). 2. OSA was not shown in service, is not causally or etiologically related to service, and is not caused by or permanently worsened in severity by a service-connected disability. 3. DM was not shown in service, is not causally or etiologically related to service, and is not caused by or permanently worsened in severity by a service-connected disability. CONCLUSIONS OF LAW 1. OSA was not incurred in service or aggravated by service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2020). 2. DM was not incurred in service or aggravated by service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter was previously before the Board in August 2015, September 2017, May 2019, September 2020, and August 2021. The Veteran testified before a Veterans Law Judge (VLJ) in May 2017. A copy of the transcript has been associated with the file. In June 2021, the Veteran was notified that the VLJ who conducted his hearing was no longer at the Board. To date, he has not indicated that he wishes to be scheduled for a subsequent hearing; thus, there is no bar to proceeding with the appeal. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Sleep Apnea The Veteran asserts that he has OSA which is a result of his exposures to flammable liquids and environmental hazards while working as a medical specialist. Specifically, he asserts that he was exposed to open pits, and fire aircraft simulations. Alternatively, he suggests it is caused or permanently worsened by his service-connected hypertension. Turning to the evidence, the record shows that the Veteran first underwent a sleep study in April 1991. The earliest notation of a diagnosis for OSA is shown to be in November 1991. Thus, a current diagnosis is shown, and the first element of service connection is met. Next, his service treatment records (STRs) are silent as to any diagnoses of, or complaints for OSA. The Veteran has repeatedly asserted, however, that he experienced difficulty sleeping and snoring during service. Regardless, these symptoms are not dispositive in showing a diagnosis or symptoms of OSA. However, the Veteran has also claimed that his exposure to burn pits is what caused his OSA. Thus, for these purposes, the second element of service connection, an in-service incurrence, may be considered met. Regardless, the claim continues to fail on the final element of direct service connection. Specifically, the Veteran submitted an August 2012 OSA disability benefits questionnaire (DBQ). While the examiner clarified a diagnosis of OSA and noted that he had been seeing the Veteran since 2010, no etiological opinion was rendered. Later, in a July 2013 letter, the Veteran's private provider noted that he had a history of OSA, treated with a CPAP. The examiner also noted that he had a history of hypertension, which may be related to his OSA. The examiner gave no further opinion or rationale. At an October 2014 VA examination, the Veteran was examined, and his medical history reviewed. The examiner then opined it was less likely than not that his OSA was related to any incident of service. The examiner reasoned that obesity is the best documented risk factor for OSA. Alternatively, the examiner noted that the anatomical upper airway configuration may explain the reason OSA occurs in young, healthy people who are not obese. The examiner went on to state that obese and non-obese patients who have a narrow anatomical airway and significant snoring history with a history of possible apneic episodes are therefore screened. Per the examination that day, the examiner noted that a narrow anatomical upper airway configuration was noted, as well as mild obesity, with a body mass index (BMI) of 32.7. The examiner also referred to the daytime sleepiness noted in the Veteran's STRs in November 1958 as well as his report of being exposed to smoke and burn pits but noted that these factors would not be considered to be related based upon a review of the medical literature. The examiner also noted that the Veteran had a subsequent work history as a firefighter, and that his obesity was noted at the time of the possible OSA diagnosis. This, along with the anatomical nature of the Veteran's airway, would thus be more likely to be the cause of his OSA. An August 2018 VA examination and opinion likewise found that it was less likely than not that the Veteran's OSA was a result of his service. The examiner considered the evidence for being sleepy during the day in the Veteran's STRs, as well as records of his involvement in a motor vehicle accident. However, the examiner noted that there was no evidence of facial trauma in his records which might support this assertion. The examiner then referred to a statement submitted by the Veteran's wife which asserted that he began having breathing and sleeping problems in the early 1990s, and that they had already been married for 30 years at that point. The examiner then noted that his chart review was evident for long standing obesity over the decades as well as an extremely shallow orophangeal opening and large neck circumference. The examiner then reiterated the findings of the October 2014 VA examiner and added that OSA is an anatomical structural condition strongly associated with obesity, age, a narrow or shallow oropharynx, large upper body habitus and large neck circumference, which is organic but structural. The examiner noted that the Veteran exhibited several of these risk factors, including obesity, large neck circumference, and extremely shallow oropharyngeal opening, which is therefore strongly indicative that it is a structural disease and not an organic disease. Next, the examiner noted that OSA was not diagnosed within one year of military discharge, and that sleepiness noted in his STRs could have several causes. The lay statement by his wife, the examiner stated, with being married to him for thirty years, and noting that symptoms did not begin until the 1990s, also weighed against the claim. At a January 2020 VA examination, the examiner also opined that it was less likely than not that the Veteran's OSA was related to active duty service. The examiner reasoned that the Veteran was not exposed to any materials which are known to cause OSA. Additionally, the Veteran developed OSA years after his time in the military. Finally, the examiner noted that the OSA was not known to be caused by smoke from open burn pits or flammable liquids. The examiner also noted that the most likely etiology of the Veterans' OSA was obesity. At an April 2021 VA examination, the examiner also opined it was less likely than not that the Veteran's OSA was related to service. The examiner noted that OSA is due to obstruction during sleep as a result of narrowing of respiratory passages. Anatomic defects were thought to be the predominant etiology. An August 2021 VA examiner concurred with these findings and noted that OSA is not related to burn pipes or flammable liquids, but instead to the biomechanical narrowing of the post pharynx. The available private and VA treatment records have also been reviewed. Importantly, there is no indication that any treatment provider has ever properly related the Veteran's OSA to his active duty service or his alleged hazardous exposures during service. Thus, direct service connection is not for application. Considering next secondary service connection, the Veteran has been service connected for hypertension. Thus, the second element is met. Nonetheless, the claim continues to fail on the final element as no treatment provider has found a link between his OSA and hypertension. In this regard, the October 2014 VA examiner noted that OSA and hypertension were not related per the available medical literature. The examiner noted that the normal aging process would be the most likely etiology. Specifically, the examiner stated that in their experience, transient hypertension and headaches can be noted around the time of a diagnosis of OSA but with CPAP therapy, the blood pressure usually normalizes. In this regard, the Veteran has been on hypertension medication since the 1960s, and OSA was not seen until the 1990s. At an August 2018 VA examination, the examiner likewise opined that it was less likely than not that the Veteran's OSA was due to his service-connected hypertension. The examiner reasoned that a review of the medical literature is silent for a large clinical study that associated or linked hypertension to causing or aggravating OSA. The examiner reiterated that the Veteran had obesity, a large neck circumference, and an extremely shallow oropharyngeal opening, which is linked to structural disease. Therefore, it is less likely than not that his OSA was aggravated or caused by his hypertension. A January 2020 VA examiner also found that it was less likely than not that the Veteran's OSA was caused or aggravated by his service-connected hypertension. The examiner reasoned that hypertension is not known to cause or aggravate OSA and vice-versa. The examiner referred specifically to the July 2013 private opinion which indicated a relationship may be present, but clarified that OSA may cause hypertension, but hypertension is not known to cause OSA. In a February 2020 addendum opinion, the examiner again clarified that the most likely cause of the Veteran's OSA was obesity, as his BMI has ranged from 32.78 to 36.70, and thus it was not likely that it was due to, or aggravated by, hypertension. April and August 2021 VA examiners reiterated these findings by opining that it was less likely than not that the Veteran's OSA was caused or aggravated by his hypertension. The examiners noted that OSA is due to obstruction as a result of narrowing of respiratory passages and that anatomic defects are thought to be the primary etiology. The examiner in April 2021 also noted that the medical evidence was not sufficient to determine a baseline of severity and that it was less likely than not aggravated by hypertension as there was no evidence of aggravation. Thus, the medical evidence does not support service connection on a secondary basis. A review of the record shows no positive nexus opinion that supports the claim of service connection for sleep apnea on a secondary basis. In this regard, great probative weight is attached to the available VA examination opinions and reports. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that any VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, the examiners have the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. As such, no medical provider has provided a link between the Veteran's current OSA and his active duty service or any service-connected disability and the appeal is denied. Diabetes Mellitus, Type II The Veteran asserts that he has DM which is a result of his exposures to flammable liquids and environmental hazards while working as a medical specialist. Specifically, he asserts that he was exposed to open pits, and fire aircraft simulations. Alternatively, he suggests it is caused or permanently worsened by his service-connected hypertension. As to the first element of service connection on any basis, the medical evidence reflects a current diagnosis of DM. In this regard, available records show treatment, at the earliest, in 1997. As such, a current diagnosis is shown, and the first element has been met. Next, DM is a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As noted above, the STRs are silent for complaints of, treatment for, or a diagnosis of DM. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connection based on continuity of symptomatology since service. Specifically, the medical evidence shows the Veteran was first treated for elevated glucose levels in, at the earliest, 1997. The Veteran separated from service almost forty years earlier in March 1959. While he maintains that DM was incurred in service, this is not supported by the contemporaneous evidence. As such, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, DM did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1959 but did not note symptoms until 1997 at the earliest. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. Considering next direct service connection, as to an in-service incurrence, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of DM. While a separation examination is not of record, an August 1958 annual examination showed that a clinical evaluation of the endocrine system was normal and that a urinalysis was negative for sugar. Therefore, the medical evidence does not support direct service connection based on an in-service incurrence. To the extent that the Veteran asserts that his DM was a result of exposure to hazardous materials in service, the medical evidence likewise does not support this finding. Specifically, after examining the Veteran and reviewing his records, an October 2014 VA examiner opined that it was less likely than not that the Veteran's DM was a result of his service. The examiner reasoned that obesity would be considered a contributing factor or increased risk for the development of DM. the examiner referenced a medical study conducted by Duke University which found that for every five pounds gained, an increased risk of DM is noted. The examiner noted that based on a review of the medical literature, smoke exposure would not be considered to be a cause of DM. Likewise, after examining the Veteran and reviewing the record, a January 2020 VA examiner opined that it was less likely than not that the Veteran's DM, specified to be type II, was due to service. The examiner reasoned that the Veteran had no noted exposures during service which are known to increase the risk of developing DM. Specifically, the Veteran was not deployed for combat in Vietnam or other regions which would have put him at risk for herbicide exposure. Instead, the examiner opined that the likely cause of the Veteran's DM was his obesity. In support of this finding, the examiner referred to the entire claims file, pertinent medical complaints, symptoms, and clinical findings which were reported in detail. In a report dated February 2020, the examiner went on to state that the Veteran currently had a body mass index (BMI) of 33.26, and that from November 2007 to January 2020, he had BMIs ranging from 32.78 to 36.70. Further, the examiner noted that the Veteran developed DM decades after he was in the military; thus, making it less likely. An April 2021 VA examiner also concurred with these findings and opined it was less likely than not that the Veteran's DM began during, or was otherwise related to, service. The examiner reasoned that the Veteran's medical records did not support that the Veteran's DM began during service, and that the risk factors for the development of DM did not include open pits, or exposure to flammable liquids. Therefore, after considering the totality of the evidence, even if the Board were to accept the Veteran's reports of exposures to fire pits and hazardous material in service as an in-service incurrence, the final element, a medical nexus, remains unmet. Specifically, no medical provider, to include the Veteran's own providers in the available private treatment records, have related his DM to any incident of his active duty service. Thus, direct service connection is not established. Finally, the Veteran's remaining contention is that his DM was caused, or permanently worsened by, his service-connected hypertension. In this regard, the Veteran is in receipt of service connection for hypertension; thus, the second element of secondary service connection is met. However, the claim continues to fail on the final element, medical evidence establishing a link between the service-connected disability and the current disability. Specifically, at a January 2020 VA examination, the examiner opined that the Veteran's DM was less likely than not caused or aggravated by his service-connected hypertension. The examiner reasoned that hypertension is not known to cause DM. The examiner noted that this also applied to his service-connected bilateral hearing loss and tinnitus disabilities which have no known association to DM. In February 2020, the same VA examiner submitted an addendum which reiterated the previous opinion. The examiner specifically noted that the conditions were known to be unrelated, and that the likely cause of the Veteran's DM was in fact obesity. The examiner went on to restate the Veteran's known BMI calculations and noted that obesity is a significant risk factor for the development of DM. This opinion was shared by an April 2021 VA examiner who likewise opined that it was less likely than not that the Veteran's DM was caused or aggravated by his hypertension. The examiner reasoned that the risk factors for DM did not include hypertension, bronchitis, tinnitus or bilateral hearing loss. The examiner also noted that there was no evidence of aggravation of the Veteran's DM, thus, no aggravation due to these service connected disabilities was shown by the record. An August 2021 VA examiner also noted that there was no relationship between DM and burn pits or flammable liquids found in the relevant medical literature. Additionally, the examiner found no relationship between DM and hypertension as seen in medical literature. Specifically, the examiner reiterated the most likely cases were obesity, no exercise, and weight gain. After considering the totality of the evidence, the medical evidence weighs against the claim. In this regard, the Board has afforded great probative weight to the medical opinion provided by various VA providers. The opinion was based on an examination of the Veteran as well as a review of his medical history and the articles submitted by the Veteran and considered his contentions. Additionally, there is no evidence that any essential fact was misstated or improperly relied upon in rendering the opinion. Most importantly, there is no medical opinion which tends to contradict either opinion. As such, the medical evidence does not support service connection on a direct or secondary basis. The Board has also carefully considered the articles submitted by the Veteran regarding any causal relationship between DM and burn pits. The Court has indicated that treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). Significantly however, the Court has also held that treatise materials generally are not specific enough to show nexus, id. at 317, and that medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). In this situation, the VA medical opinions addressed the Veteran's specific case and rendered an opinion following examination of the Veteran and a review of his medical history, which is more probative than generic treatise evidence. The examiners provided an adequate rationale and considered the Veteran's submitted articles. Importantly, these articles and abstracts are broad and general and are not directly and specifically pertinent to his individual case. Accordingly, they are afforded less probative weight. Further, while medical treatise evidence can provide important support when combined with an opinion of a medical professional, such a medical nexus has not been provided. Mattern v. West, 12 Vet. App. 222, 228 (1999). As such, this evidence is not dispositive and does not outweigh the findings of the VA opinions which was based on a specific examination of this Veteran. Finally, and with regard to both claims, the Board has also considered the Veteran's testimony and lay statements that DM and OSA were caused by his service-connected hypertension and fire pit exposure. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiologies of his current disorders due to the medical complexity of the matter involved. (Continued on the next page) Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. Further, the medical treatise and article evidence does not relate to this particular Veteran. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Nykeia Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.