Citation Nr: 21006003 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-22 145 DATE: February 3, 2021 ORDER Entitlement to service connection for sleep apnea due to tobacco use or as secondary to a service-connected compression fracture deformity is denied. FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran’s obstructive sleep apnea is proximately due to or aggravated by his service-connected compression fracture deformity. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1103, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from October 1964 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran submitted a notice of disagreement (NOD) in December 2017. A statement of the case (SOC) was issued in February 2018. The Veteran perfected a timely substantive appeal via VA Form 9 in April 2018. The claim was remanded for further development in December 2019 and has been returned to the Board for adjudication. The Veteran did not request a hearing before the Board. 1. Entitlement to service connection for sleep apnea. The Board has reviewed the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection may also be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To establish entitlement to service connection on a secondary basis, there must be 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. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board must assess the credibility and weight of all the evidence, including the lay and medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his obstructive sleep apnea is secondary to his service-connected back condition. Alternatively, he asserts that tobacco use during his time in service caused the sleep apnea. Thus, the question for the Board is whether the Veteran’s currently diagnosed obstructive sleep apnea is proximately due to or the result of, or was aggravated beyond its natural progress, by the service-connected compression fracture deformity. The Board must also consider whether the sleep apnea is caused by his tobacco use in service. As an initial matter, the Board notes that the December 2019 remand directed the Agency of Original Jurisdiction (AOJ) to request potentially relevant records from the Veteran’s in-service hospitalization in Germany. In August 2020, a request for records was sent to the Wiesbaden Army Health Clinic. A request was also made to the National Personnel Records Center. In October 2020, the AOJ notified the Veteran of the attempts and their determination that the records could not be located. The Veteran was given the opportunity to submit any additional evidence in support of his claim. In cases where service treatment records are unavailable, VA has a heightened duty to assist the claimant by advising him or her to submit alternative forms of evidence supporting the claim and assisting him or her in obtaining this alternative evidence. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Further, in cases where a claimant’s records have been lost or destroyed, VA has a heightened duty to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the Veteran’s existing service treatment records contain a discharge summary from the Wiesbaden Clinic as well as his separation physical. His back injury during service is not contested; indeed, service connection is in effect for the resulting disability. The Veteran’s sleep apnea was not diagnosed until many years following service and there is no allegation of onset during service. After careful review and consideration of the evidence of record, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s obstructive sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by the service-connected disability compression fracture disability. 38 U.S.C. §§ 1110, 1131; Allen, 7 Vet. App. at 439; 38 C.F.R. § 3.310(a). In September 2016, a VA examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the service-connected compression fracture deformity. She noted the Veteran’s fall in service, resulting in the back condition. She also noted that the Veteran is a very active individual with no evidence of difficulty with chest expansion. The examiner explained that chronic back pain related to remote thoracic fracture deformities has not been documented to be a causative factor in the development of obstructive sleep apnea. She stated that the Veteran’s risk factors of gender, age, and a history of tobacco abuse are positive risk factors for the development of obstructive sleep apnea. Further VA examination was conducted in January 2020. The examiner opined that the Veteran’s obstructive sleep apnea is not at least as likely as not aggravated beyond its natural progression by the service-connected compression fracture deformity. He explained that there is no medical basis for assuming a relationship between the conditions. The two conditions are not causally related and may co-exist, but one condition does not impact the other. Specifically, the examiner stated that a back condition does not cause or aggravate sleep apnea. The examiner noted that the weight of medical literature supports a finding that obstructive sleep apnea is a condition in which tissues in the throat occlude the passage of air during the relaxation of sleep. It is primarily a biomechanical condition with primary risk factors of age (increasing from young adulthood), gender (male), obesity (the strongest risk factor), family history, and craniofacial abnormalities. Alcohol and smoking are also well-known risk factors. The examiner explained in detail that the prevalence of obstructive sleep apnea progressively increases as body mass index (BMI) and associated markers (e.g., neck circumference, waist-to-hip ratio) increase. He stated that this scenario applies to the Veteran and repeated that there is no medical basis to assume that service-connected compression fracture deformity can aggravate sleep apnea. In November 2020, another VA examiner reviewed the claims file and concluded that the Veteran’s obstructive sleep apnea is less likely than not aggravated beyond its natural progression by the service-connected compression fracture deformity. The examiner noted that the Veteran is overweight with a BMI of 27 and has a neck size of 16, which is at the cutoff for risk factor of obstruction. He also noted VA treatment notes from March 2018 reflecting the Veteran’s report that he “smokes” heavily and has nasal obstruction. Treatment records also reflect a polysomnography report documenting obstructive sleep apnea. The Veteran was given a CPAP machine to control the obstruction caused by the weight, nasal obstruction, neck enlargement, and smoking. The examiner cited a Mayo Clinic finding that the “leading risk factor of OSA is Excess weight, Obesity.” He found no medical evidence in the Veteran’s claims file or in medical literature that the old compression fracture is somehow causing or aggravating obstruction and aggravating the obstructive sleep apnea. In his opinion, attribution of aggravation would be purely speculative as there is absolutely no evidence in support of obstruction caused by the old healed compression fractures. The Veteran has not submitted any medical evidence or opinions in support of his claim. Instead, he relies on his own lay statements and a general assertion that his sleep apnea is secondary to his back injury. When considering lay evidence concerning service connection, the Board must determine, on a case-to-case basis, whether the particular disability is the type of disability for which lay evidence is competent; and if it is, the Board must weigh that evidence against the other evidence of record in making its determinations regarding the existence of service connection. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the issue is medically complex, as it requires knowledge of the interaction between multiple systems and organs in the body. Therefore, it is outside the competence of the Veteran because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana, 24. Vet. App. at 428. Medical evidence is, therefore, necessary to determine the etiology of the Veteran’s sleep apnea. Consequently, any lay statements by the Veteran connecting his sleep apnea to his back condition are assigned little probative value as the lay person giving such statement is not competent to provide a medical statement of etiology. See 38 C.F.R. § 3.159(a). In this case, the Board gives more probative weight to the collective medical opinions of record which do not support a finding that the Veteran’s currently diagnosed obstructive sleep apnea is proximately due to or the result of, or was aggravated beyond its natural progress, by the service-connected compression fracture deformity. The Board finds the medical opinions from the VA examiners highly probative as they clearly take into account the Veteran’s contentions along with a review of the evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the 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”). The opinions contain clear conclusions with supporting data and reasoned medical explanations. The medical experts found no causal connection or evidence of aggravation between the Veteran’s sleep apnea and his service-connected back disability. Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). As such, service connection for obstructive sleep apnea secondary to the Veteran’s service-connected compression fracture deformity is not warranted. Lastly, the Veteran contends that his sleep apnea was caused by tobacco use that began due to the stressors of his service. To the extent that the Veteran smoked tobacco during service, service connection may not be granted on the basis of tobacco use, even if such tobacco use began in service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. For claims filed after June 9, 1998, Congress prohibits the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110, 1131. The Veteran filed the current claim in 2016; therefore, any claim of service connection based on tobacco use must fail. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jamison, E. 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.