Citation Nr: 21006547 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-25 601 DATE: February 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is GRANTED. Entitlement to service connection for heart disease, to include as secondary to presumptive herbicide agent exposure, is DENIED. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his sleep apnea was incurred during service in the United States Army. 2. The weight of the evidence does not establish that the Veteran has current heart disease. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea (OSA) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. (2020) 2. The criteria for entitlement to service connection for a heart disease have not been satisfied. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1961 to January 1982. Among the decorations, medals, citations and ribbons listed, the Veteran’s certificate of release from active duty (DD214) reflects that he received the Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Vietnamese Cross of Gallantry with palm. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, the Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning 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); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. In February 2012, the Veteran submitted a VA Form 21-526b. Therein, the Veteran initiated a claim for service connection for sleep apnea. Again, entitlement to service connection is warranted with evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. In August 2012, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, “sleep apnea started around 1972. My wife would shake me and wake me up and tell me that I had stop breathing in my sleep. Over the years it happen more often. I went to sick call a few times but at that time no one knew what sleep apnea was. They would always ask me how I fel after being awaken by my wife.” In August 2012, the Veteran’s wife submitted a VA Form 21-4138. Therein, the Veteran’s spouse posited that, “when he did sleep, he would stop breathing. I would have to shake him to start him to breathe again. This went on for years, unchecked.” Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In July 2013, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran revealed that, “I had sleep issues when I was in the military and never realized what it was, the military didn't recognize the sleep disorders until after I exited. I never went to complain about sleep disorders in the military (go to sick call) because I did not know.” In August 2014, the Veteran’s service treatment records (STRs) were associated with the claims file. After review, the Board notes that the STRs do not contain a notation to support that the Veteran was treated for and/or diagnosed with sleep apnea during service in the United States Army. The Board also notes that, in July 1961 and October 1981, the Veteran did not self-report trouble sleeping shortness of breath. In December 2017, a Sleep Medicine Note was associated with the claims file. Therein, the provider noted a diagnosis for severe obstructive sleep apnea. The provider noted that studies support an increased prevalence and incidence of hypertension among patients with obstructive sleep apnea. The provider opined that, “(t)herefore, in my opinion as the patient has service connection (10%) for hypertensive vascular disease it is as likely as not (50% likelihood) that patient had obstructive sleep apnea syndrome when he was active duty and was diagnosed with hypertension / hypertensive vascular disease and, high likelihood and possibility that obstructive sleep apnea syndrome was not diagnosed at, that time as patient did not undergo a sleep study during that period.” In March 2018, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured sleep apnea. The VA provider identified a 2008 diagnosis for obstructive sleep apnea (OSA). The VA provider opined that, “the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness; or caused by his SC conditions or medications.” The VA provider supplied the following rationale: “There is no support in the available evidence for a description of witnessed apneic episodes or a diagnosis of OSA in service. There is a statement in support from his spouse dated 08/08/2012 in which the wife says the veteran exhibited apneas during sleep after returning from Vietnam. However she gives no chronological reference to the onset. The veteran wrote on 08/09/2012 that he believed he had apneas as early as 1972, but there is no evidentiary support for that. He tells us he weighed about 162 lbs at separation, and currently weighs 219 lbs, which adds predominant significance to likelihood that his advancing age and weight gain would have conspired as risk factors, to contribute to his OSA onset sometime after separation. There is no objective confirmation that he exhibited apneas earlier than some time after separation. Obesity is a powerful predictor of OSA according to Medical Literature. He is SC for Hiatal Hernia, knee, Hypertension, DJD of Spine, Neurosis/Anxiety, and Clavicle/Scapula. None of these SC conditions listed in the 2507 have potential to alter the upper respiratory tract caliber, or otherwise interfere with the airway, which is the well understood pathophysiology of OSA. None of the prescribed medications he receives can alter the anatomy of the upper respiratory tract. 09/28/2016 POSITIVE NEXUS OPINION FROM DR. SIKKA: service connection more likely than not because veteran had hypertension in service. This is an erroneous opinion with no adequate rationale provided. Although there is a medically accepted nexus between OSA as cause for hypertension, the reverse is not true. Hypertension results from prolonged chronic OSA, but hypertension does not cause OSA, as supported by the Medical Literature.” In October 2019, a statement from the Veteran’s son was associated with the claims file. Therein, the son posited that, “I can recall back in 1975. I was about 10 years old at the time and could not understand why my father never had the energy to play with me after school and on the weekends. My mother tried to explain my dad didn’t get any sleep during the night. As I got older and more curious about my father’s health issues, my mom explained his condition. He would tremble and stop breathing numerous times throughout the night and snore very loudly and gasp for air.” In October 2019, a statement from the Veteran’s daughter was associated with the claims file. Therein, the daughter posited that, “I can remember as far back as 1973 when I was about 8 years old. My mother . . . would say ‘he trembles so hard it shakes the bed.’ My mother would lie awake all night watching him sleep and when he would stop breathing she would shake him hard so he would take a breath.” In October 2019, the Veteran and his wife supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran’s wife testified that the Veteran would snore and stop breathing while he was in the United States Army. The Veteran’s wife averred that the snoring and breathing issue increased in severity after the Veteran returned from service in the Republic of Vietnam. The Veteran testified that a doctor had indicated that sleep apnea was “related to –to my service also because high blood pressure had something to do with.” In January 2020, the Board addressed the Veteran’s claim for service connection for an OSA disability. At that time, the Board found that the March 2018 VA examination report was inadequate, because the examiner did not consider the competent and credible lay statements of record regarding the etiology of the Veteran’s current sleep apnea. In January 2020, a Disability Benefits Questionnaire (DBQ) was associated with the claims file. After review of the claims file, and examination of the Veteran, the VA examiner noted a 2008 diagnosis for obstructive sleep apnea. During the examination, the Veteran reported that his wife noticed episodes of apnea after they were married in 1972. The Veteran reported frequent interrupted sleep and feeling sleepy and tired during the daytime. In November 2020, a Disability Benefits Questionnaire (DBQ) was associated with the claims file. After review of the claims file, the VA examiner opined that the Veteran’s current OSA was less likely than not (less than 50 percent probability) incurred in, or caused by, an in-service injury, event, or illness to include snoring, apneic events, daytime fatigue and somnolence. The VA examiner supplied the following rationale: “(t)here is no nexus between the Veteran's claimed in-service injury, event, or illness to include snoring, apneic events, daytime fatigue and somnolence and his current OSA. No objective medical record or reputable medical literature evidence to indicate otherwise was found. The claimed in-service injury, event, or illness to include snoring, apneic events, daytime fatigue and somnolence are nonspecific signs/symptoms which are not pathognomonic for OSA. Therefore, OSA is not a diagnosis based on nonspecific signs or symptoms but a diagnosis based on objective PSG. No in-service diagnosis of OSA was found. ‘Shortness of breath’ and ‘Frequent trouble sleeping’ were both marked ‘No’ by the Veteran in DoD Retirement Report of Medical History 10/27/1981 confirming no signs or symptoms consistent with OSA at the time of separation.” The VA examiner also opined that the Veteran’s current OSA was less likely than not (less than 50 percent probability) proximately due to or the result of his service connected conditions, to include PTSD or the treatment medications. The VA examiner supplied the following rationale: “(t)here is no mechanism of action for cause or permanent aggravation beyond natural progression of the Veteran's OSA by his service connected condition to include PTSD or the medications used to treat such. DoD Retirement Report of Medical Examination 10/27/1981 documents the Veteran's height as 67 and 1/2" and weight as 160 (calculated BMI is 24.7), while CTHCS SLEEP MEDICINE CONSULT 06/23/2020 below documents his height as 66", weight as 191 and BMI as 30.9 which is a 31 pound post service weight gain. The Veteran has multiple risk factors for OSA to include but not limited to his age, male gender and obesity as listed in UpToDate (a review of the most current medical literature), but PTSD is not listed. Please see UpToDate below. Nevertheless, it should be remembered that a risk factor is not the same as a cause. The cause of OSA is well documented in Harrison's Principles of Internal Medicine which states the following: ‘Apneas and hypopneas are caused by the airway being sucked closed on inspiration during sleep’ and in UpToDate which states under PATHOPHYSIOLOGY the following: ‘OSA is characterized by recurrent, functional collapse during sleep of the velopharyngeal and/or oropharyngeal airway, causing substantially reduced or complete cessation of airflow despite ongoing breathing efforts. This leads to intermittent disturbances in gas exchange (eg, hypercapnia and hypoxemia) and fragmented sleep.’ The etiology/cause of the Veteran's OSA is his post service ‘airway being sucked closed on inspiration during sleep’ and not the claimed in-service injury, event, or illness to include snoring, apneic events, daytime fatigue and somnolence or his service connected conditions to include PTSD or the medications used to treat such.” The Board notes that the STRS reflect that the Veteran did not report sleeping problems and/or trouble breathing during service. However, the Veteran’s spouse and children have competently and credibly reported that the Veteran endured difficulty sleeping and apneic events during service in the United States Army. The Board notes that, in the December 2017 Sleep Study Note, the provider relays a speculative in-service incurrence for the Veteran’s current sleep apnea. The provider relayed that an in-service diagnosis was not available, because a sleep study was not done at that time. The Board finds that the March 2018 and November 2020 VA examination reports are inadequate for this service-connection analysis. To support the unfavorable opinions on the issue of direct service connection, the examiners relied on the absence of a sleep apnea diagnosis in the STRs. An examiner may not rely solely on a lack contemporaneous medical evidence, or on the absence of treatment for the claimed condition in the service medical records, to justify an unfavorable nexus opinion. See e.g. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir 2006) (noting that VA examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In the absence of contemporaneous medical evidence, an examiner must consider whether the lay statements present sufficient evidence of disability’s etiology. The Veteran and his family have maintained that they first noticed difficulty sleeping and apneic events during U.S. Army service, and that the Veteran experienced the same symptoms until a diagnosis was obtained in 2008. Furthermore, the Veteran and his family are competent to testify as to facts that were personally observed, to include difficulty sleeping and apneic events. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evidence before the Board consists of inadequate negative VA medical nexus opinions on the one hand, and competent and credible lay evidence and a positive nexus opinion on the other. The evidence is therefore at least evenly balanced as to whether the Veteran’s current sleep apnea was incurred during service in the United States Army. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335. Accordingly, the Board finds that a grant of service connection is warranted for sleep apnea. Since the Board is granting service connection for sleep apnea on a direct basis, there is no need to discuss entitlement to service connection on a secondary, presumptive or any other basis, as all other theories of entitlement to service connection are rendered moot. 2. Entitlement to service connection for heart disease, to include as secondary to presumptive herbicide agent exposure, is denied. In February 2012, the Veteran submitted a VA Form 21-526b. Thereby, the Veteran initiated a claim for service connection for heart disease. Again, direct service connection generally requires a current disability, an in-service incurrence of an injury or disease, and a competently identified nexus between the first and second requisite elements. See Hickson, 12 Vet. App. at 253. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In May 2013, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured heart disease. The VA examiner reported that the Veteran did not demonstrate ischemic heart disease. The VA examiner reported that the Veteran’s medical history did not include percutaneous coronary intervention, myocardial infarction, coronary bypass surgery or congestive heart failure. In August 2013, the Veteran’s treatment notations from Integrity Rehab & Home Health were associated with the claims file. Therein, the Veteran reported heart palpations on multiple occasions. After review, the Board finds that the records are devoid of a heart disease diagnosis. In December 2017, the Veteran’s treatment notations from Integrity Rehab & Home Health were associated with the claims file. Therein, the Veteran reported heart palpitations on multiple occasions. After review, the Board notes that the cardiovascular reports do not identify or diagnosis heart disease. Additionally, in December 2017, a provider reported that, “normal rate, regular rhythm, S1 normal, S2 normal and normal heart sounds.” In March 2018, the Veteran underwent a VA examination to address the nature and etiology of any currently endured heart condition(s). The VA examiner reported that the Veteran did not have a current heart condition. The VA provider supplied the following medical history: “the veteran claims heart disease or IHD and an opinion is requested relative to Agent Orange and heart disease. The veteran is treated for SC hypertension, but has documented normal heart function, with LVEF of 65% to 70% on Echocardiogram 09/16/2014.” The VA examiner noted a 76 heart rate, regular rhythm, normal heart sounds, and a 157/74 blood pressure. The VA provider noted that a 2014 echocardiogram revealed normal wall motion and thickness. The VA examiner relayed that, “05/29/2013 VA C&P DBQ Heart: no diagnosis for any heart disease. No IHD. Exercise capability 7-10 METs. 09/16/2014 Echocardiogram: normal; LVEF 65-70% No diagnosed heart disease. 06/19/2015 Scott and White: no diagnosed heart disease. Dizziness and dysphoria relate to the Central nervous system and do not support a diagnosis of heart disease. Wide splitting of the second heart sound is a physical sign on examination that fails to qualify as a diagnosis and fails to be duplicated on the exam today. The Medical Literature places the significance of a splitting of the second heart sound as relating to the temporal interval between the closing of the Aortic and Pulmonic Heart Valves. The definitive Echocardiographic study of 09/16/2014 demonstrated normal valvular function of Aortic and Pulmonic valves. Subjective report of Palpitations occurs with frequency in the normal population and does not support a diagnosis of heart disease without objective corroboration. There is no objective evidence to support a myocardial infarction in this case (heart attack).” In October 2018, the Veteran underwent a VA examination that considered the nature and etiology of central nervous system and neuromuscular diseases. At that time, the VA examiner noted a diagnosis for Transient Ischemic Attack (TIA). The Veteran supplied the following history: “had a TIA event about 2014 . . . was placed on Plavix, at that time had dizziness, disorientation and difficult in walking with tendency to right, also mil numbness in left upper extremity. He says has never had more events of TIA, he recovered from the previous TIA symptoms. Currently there is no TIA symptoms and does not affect his daily activities.” The VA examiner noted that the Veteran utilized Plavix for continuous control of his central nervous system condition, TIAs. In February 2019, the Veteran’s treatment notes from the Killeen West Clinic were associated with the claims file. After review, the Board finds that the notes are devoid a diagnosis for heart disease. On multiple occasions, the Veteran was noted to demonstrate a regular rate and rhythm. In May 2008, x-rays revealed that, “heart size is accentuated, but overall felt to be within normal limits. There is no evidence of obvious failure.” In February 2019, the Veteran’s treatment notes from Baylor Scott & White were associated with the claims file. After review, the Board finds that the notes are devoid of a diagnosis for heart disease. In May and December 2014, a provider specifically noted that, “there is no history of CAD/MI, heart failure or left ventricular hypertrophy.” In March and September 2017, a provider noted that, “there is no history of angina, kidney disease, CAD/MI, CVA, heart failure, left ventricular hypertrophy, PVD or retinopathy.” Additionally, in January 2018, a provider noted normal rate, regular rhythm, normal heart sounds and intact distal pulses. In October 2019, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that he was exposed to Agent Orange during military service. The Veteran testified that, “I had the palpitations, and I would go on sick call, and they would say well that’s--that’s normal, you know. Some people have palpitations, some of them get worse than the other ones. Now, once I retired from the military--once I retired from the military, I was having them so bad that I had a heart cath done at Sierra Medical Center in El Paso, and I was also treated for a heart condition at the VA Hospital in El Paso.” The Veteran testified that he was unaware of ever receiving a diagnosis for coronary artery disease. In January 2020, the Board addressed the Veteran’s claim for service connection for heart disease. At that time, the Board noted that the Veteran had heart procedures at the Sierra Medical Center in March 1986, which is before the appellate period. Based on the Veteran’s competent and credible testimony, the Board remanded the claim to the AOJ in order to identify and obtain any missing medical records that identified heart disease during the appellate period. In February, September, and October 2020, the Veteran’s treatment records from the Olin E. Teague Veteran Center were associated with the claims file. After review, the Board notes that the Veteran was not diagnosed with heart disease during the claim period in these records. In July 2020, the Veteran underwent a VA examination that considered the nature and etiology of any current heart condition. The VA examiner reported that the Veteran did not have a heart condition. During the physical examination, the Veteran demonstrated regular rhythm, normal heart sounds, and clear auscultation of the lungs. During interview-based METs testing, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The VA examiner remarked that, “(f)or the claimant's claimed condition of heart disease there is no diagnosis because there are no findings, signs and or symptoms to support a diagnosis. No heart medication, only cholesterol and HTN. No heart procedure. No cardiologist.” The VA examiner opined that it was less likely than not (less that 50 percent probability) that any current heart condition was incurred in, or caused by, an in-service injury, event, or illness. In support, the VA examiner relayed that there was no diagnosis to render an opinion. In October 2020, an echocardiogram was performed at Round Rock Cardiology. The provider reported that, “stable cardiac structure with velocities within normal limits. LVEF 60% with mild regurgitation of the mitral valve noted. Overall indication is a low risk scan.” The Board notes that, under any theory of entitlement, a current disability is required. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (2001). After carefully reviewing the Veteran’s claims file, the Board concludes that the probative weight of the evidence does not show that the Veteran has current heart disease. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for service connection for heart disease. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for service connection for heart disease must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.