Citation Nr: 21005337 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-36 777 DATE: February 1, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The preponderance of the evidence is against finding that obstructive sleep apnea (OSA) began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to February 1970. Combat service in Vietnam is indicated by the Veteran’s receipt of the Combat Infantryman Badge and the Purple Heart. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a VA Regional Office (RO). This matter was previously before the Board in May 2018, where the Board remanded the Veteran’s claim for a VA examination to provide a nexus opinion. The examiner was asked to consider the medical article submitted by Dr. H.S. in Aug. 2015 titled "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort” and to provide a secondary nexus opinion as to any psychiatric disorders. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for obstructive sleep apnea (OSA) is denied. The Veteran seeks service connection for sleep apnea which he generally contends is related to service and alternatively asserts was caused or aggravated by his psychiatric disorders including PTSD. 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; 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" the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154 (a); 38 C.F.R. §§ 3.303 (a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran, who during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during his or her service to a herbicide agent, to include Agent Orange, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). Lastly, to substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). As will be discussed in more detail below, the Board finds entitlement to service connection for obstructive sleep apnea is not warranted. The Veteran’s service treatment records do not indicate any complaints, treatment, or diagnosis for sleep apnea. His separation examination indicated “normal” clinical evaluation for any nose, sinus, mouth and throat or lung and chest disability. After service, the record contains many post-service medical treatments, but these records do not show a diagnosis of sleep apnea until September 2013, over four decades later. In support of his claim, the Veteran’s representative submitted a private medical opinion from Dr. H.S. dated June 2015. Dr. H. S. opined that “it is as likely as not that his psychiatric conditions aided in the development of and permanently aggravate[d] his OSA”. Dr. H.S. cited to a medical study titled “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort" which was also submitted as evidence in support of the Veteran’s claim. This article concludes that psychiatric conditions are common in Veterans with sleep apnea and indicates a possible association between the two conditions. The Veteran was afforded a VA examination in July 2019 along with an addendum medical opinion in August 2020, whereby the examiner opined that the Veteran’s OSA “is less likely as not…due to service”. The examiner noted the absence of any reports of or treatment for symptoms indicative of sleep apnea. It was further noted that the Veteran’s separation examination contained no reports or complaints of sleep problems or a diagnosis of sleep apnea. The examiner also considered the article cited by Dr. H.S. however, he concluded that this article only indicated a possible association explaining “the article itself points out that several other studies have not even shown an association of psychiatric disorders and OSA”. Furthermore, the examiner stressed the difference between association, causation and aggravation. Ultimately concluding that “there is no evidence in the medical literature that proves causation or aggravation of OSA due to psychiatric conditions”. The examiner further explained that the well-known major risk factors that cause OSA are obesity, advanced age and having a small oropharynx. Other risk factors include being male as well as having a history of tobacco use. Upon review of the Veteran’s medical history, the examiner reported that the Veteran’s body mass index of 41.7 indicates he is extremely obese, his age at time of diagnoses in 2013 was 65, has a very small oropharynx, is a male and has a significant history of tobacco use to include smoking 2-3 packs a day for 50 years. The examiner opined it was for these reasons the Veteran developed OSA and it was not causally related to service nor was it caused or aggravated by a psychiatric disorder. The Board gives the August 2020 VA medical opinion greater probative weight than the June 2015 medical opinion of Dr. H.S for several reasons. See D’Aries v. Peake, 22 Vet.App. 97, 107 (2008) (it is within the purview of the Board to evaluate the medical evidence and favor one medical opinion over another). First, Dr. H.S.’s private medical opinion appears to heavily rely on the cited medical article included with his opinion. As explained by the August 2020 VA examiner, this article does not specifically address causation nor aggravation in the context of OSA and psychiatric conditions. Upon review of the article, the Board finds that it only indicates a common occurrence between the two conditions and is therefore overly general with its purported conclusions. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that generic medical treatise evidence cannot, without more, provide the medical nexus necessary to establish entitlement to benefits); see also Harvey v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 137 (Feb. 7, 2018) (holding that the "Interpretation of a medical treatise’s meaning and assessment of its probative value as evidence in support of the claim being adjudicated are within the purview of the Board as factfinder). Dr. H.S., in using the medical article indicated above, opined that the Veteran’s psychiatric conditions “aided in the development of and permanently aggravate[d] his OSA”. The Board finds the use of the term “aided” in his medical opinion to be concerning since the proper term have use would be “caused” and is therefore, speculative in nature. Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2009) (holding that the equivocal nature of an examiner's opinion “should have signaled to the Board that the medical opinion was speculative and of little probative value”). Therefore, as the private medical opinion of Dr. H.S. appears to be speculative and based on a medical article with generic conclusions, it is given less probative weight. In contrast, the August 2020 VA examiner considered all contentions and lay statements of the Veteran including the submitted medical article by Dr. H.S., the Veteran’s medical history, and most importantly provided a well-reasoned and thorough rationale including a medical opinion as to the possible cause of the Veteran’s OSA due to known risk factors. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). While certainly not dispositive to his claim, the Board finds the scarcity in complaints and overall lapse in time significant in this particular case given that the Veteran's treatment for many other conditions and complaints through the years is well documented. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (explaining that where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the conditions or symptoms did not exist). The Veteran filed his claim for service connection shortly after his 2013 diagnosis and statements in the file from the Veteran that he has had sleep problems since separation from service in 1970. Although the Board has considered these lay statements describing in-service and post-service sleep disturbances, the Board finds the statements of less probative value in light of the context of the record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (noting that the Board may consider lay statements to be of diminished probative value based on the significant time delay between observation and report of those observations). Also, while the Veteran is certainly competent to describe symptoms and a history of complaints, he has not demonstrated medical competency to associate such symptoms with a specific diagnosis. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (recognizing that a layperson is competent to relate observable symptoms of a disability); Clemons v. Shinseki, 23 Vet.App. 1, 4-5 (2009) (noting that while, "an appellant who has no special medical expertise may testify as to the symptoms he can observe, he generally is not competent to provide a diagnosis that requires the application of medical expertise to the facts presented"). Lastly, the Veteran served in the Republic of Vietnam in the Army for over a year therefore, he is presumed exposed to herbicide agents. However, obstructive sleep apnea has not been recognized as chronic under 38 C.F.R. § 3.309 (a) nor is it recognized under 38 C.F.R. § 3.309 (e) as associated with herbicide exposure. The Veteran has also not submitted any evidence to the contrary. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.