Citation Nr: 21006337 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-42 492 DATE: February 3, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for asthma is denied. REMANDED Entitlement to service connection for a joint condition to include pain (claimed as Gulf War Illness) is remanded. Entitlement to service connection for a muscle condition to include pain (claimed as Gulf War Illness) is remanded. Entitlement to service connection for radiculopathy, left upper extremity, is remanded. Entitlement to service connection for radiculopathy, right upper extremity, is remanded. FINDINGS OF FACT 1. Service did not cause the Veteran’s sleep apnea. 2. Service did not cause the Veteran’s asthma. CONCLUSIONS OF LAW 1. The criteria for direct service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for direct service connection for asthma have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1989 to August 1989, September 1990 to September 1994, and from March 1997 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Direct Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Issue 1: Entitlement to service connection for sleep apnea The Veteran contends that he has sleep apnea, in part, due to exposure from burn pits and oil well fires. See March 2014 Notice of Disagreement. The Veteran has sleep apnea. This satisfies the first prong of a direct service connection claim. The AOJ, in a May 2015 request for examination, found that the Veteran was exposed to particulate matter and burn pit toxins during service. This satisfies the second prong of a direct service connection claim. This appeal turns on the third prong of service connection – medical nexus. The AOJ, pursuant to a June 2018 Board Remand, had the Veteran examined in June 2019. The examiner opined: The sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran was diagnosed with sleep apnea (OSA) based on sleep study on 8/3/2009 and uses CPAP. The Veteran’s exposure to burn pits has been conceded and an association between exposure to burn pits and OSA has been suggested but no causation has been demonstrated. Additionally, weight gain is a very significant risk factor for OSA and the Veteran’s weight at the sleep study was noted to be 308# and morbid obesity was also diagnosed; the highest weight in service appears to have been 202# on 8/22/1997, thus weight gain is the likely cause of the OSA in this Veteran. No other evidence regarding nexus is in the claims file. Based on the negative opinion above, the Veteran has not satisfied the third prong of a direct service connection claim. Because the Veteran has not satisfied the three prongs of a direct service connection claim, the Board must deny his appeal. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. Issue 2: Entitlement to service connection for asthma The Veteran contends that he has sleep apnea and asthma, in part, due to exposure from burn pits and oil well fires. See March 2014 Notice of Disagreement. The Veteran has asthma. This satisfies the first prong of a direct service connection claim. The AOJ, in a May 2015 request for examination, found that the Veteran was exposed to particulate matter and burn pit toxins during service. This satisfies the second prong of a direct service connection claim. This appeal turns on the third prong of service connection – medical nexus. The AOJ, pursuant to a June 2018 Board Remand, had the Veteran examined in June 2019. The examiner opined: The asthma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran uses inhaled medications c/w and has a history of being diagnosed with asthma in 2006. He has acknowledged burn pit exposure which has been associated with an increased risk of developing asthma, although no causation has been demonstrated and as noted in the excerpt above the odds ratio of the association is 1.58, thus even the association does not reach the level of “as likely as not” which would require at least a 50% or greater chance. The "excerpt" to which the examiner refers is: All patients were examined by Northport VAMC physicians. The clinical guidelines at the VAMC clinic for a diagnosis of asthma include: Presence of respiratory symptoms (cough, wheeze, dyspnea, exercise-induced shortness of breath). Spirometric evidence of airway obstruction with decreased FEV1/FVC or FEF25-75. Improvement of symptoms and FEV1 after bronchodilators. Based on these criteria, soldiers deployed to Iraq were diagnosed with asthma more often than stateside soldiers (6.6% vs. 4.3%, with a crude Odds Ratio (OR) = 1.58, 95% Confidence Interval (CI) = 1.18-2.11. The same conclusions apply when subjects are stratified by gender and age groups. No other evidence regarding nexus is in the claims file. Based on the negative opinion above, the Veteran has not satisfied the third prong of a direct service connection claim. Because the Veteran has not satisfied the three prongs of a direct service connection claim, the Board must deny his appeal. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. REASONS FOR REMAND The Board remanded the four remaining issues in June 2018 for additional development, most notably VA examinations. In these examinations, which occurred in June 2019, the Veteran cited treatment from a chiropractor that began in 2006 and ended in approximately a decade later. Although unnamed, the Board believes this is Dr. B.P., D.C. In August 2013, the AOJ attempted to obtain treatment records from Dr. B.P., D.C. dating from August 1, 2006. This corresponds with the timeline the Veteran provided to the 2019 examiners. The claims file, in an August 15, 2013 entry labeled as "Medical Treatment Record – Government Facility," contains a mix of VA and private treatment records, to include some records from Dr. B.P., D.C. However, given the Veteran's statement of roughly 10 years of treatment, the Board believes it does not possess all the records from Dr. B.P., D.C. As such, remand is warranted to attempt to obtain these records. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's treatment records from Dr. B.P., D.C. (first attempt is dated August 5, 2013) dating from August 1, 2006. Please note that the Veteran did not specify a precise end date of treatment. Instead, he noted treatment for approximately a decade after 2006. 2. Undertake any development deemed necessary based on receipt of the above records. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.