Citation Nr: 21006947 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-02 327 DATE: February 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) to include as due to exposure to herbicide agents, and secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran’s OSA is not related to service, including exposure to herbicide agents. 2. The Veteran’s OSA was neither caused nor aggravated beyond the normal course of its progression by his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA, to include as due to exposure to herbicide agents, and as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1970 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This matter was previously before the Board, most recently in August 2020. At that time, the Board remanded the claim for service connection for OSA in order to obtain an adequate VA medical opinion addressing whether the Veteran’s condition was the result of an incident in service or was related to obesity as an intermediate step between a service-connected disability and OSA. The record reflects that a VA medical opinion addressing these theories was obtained in September 2020 and, accordingly, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). The Veteran’s Contentions The Veteran seeks direct service connection based on his reported symptoms during service, exposure to herbicide agents in service and an incident during service when he was punched in the nose. The Veteran also contends that his OSA is secondarily related to his service-connected disabilities, including diabetes mellitus, hypertension and rhinitis, or that his obesity is an intermediate step between his service-connected disabilities and his OSA. Service Connection for OSA Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may also be granted where a disability is proximately due to or aggravated by an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability; and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be established presumptively for certain diseases listed in 38 C.F.R. § 3.309(e) for any veteran who was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6) during active duty service. Where, as here, a Veteran contends that a disability not found in 38 C.F.R. § 3.309(e) is related to exposure to herbicide agents, the Veteran may still present evidence to establish the nexus element on a direct, rather than a presumptive, basis. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran was diagnosed with OSA in 2015. The Veteran’s theories of direct service connection were addressed in VA medical opinions and examinations conducted in September 2019, March 2020, September 2020. The September 2019 VA examiner concluded that it was less likely as not that the Veteran’s OSA was related to his herbicide exposure. The VA examiner based her opinion on review of the relevant medical records and a physical examination of the Veteran, and cited the weight of medical literature for the lack of support of a relationship between OSA and herbicide exposure. The March 2020 VA medical opinion addressed the report by the Veteran’s wife that he has had symptoms of snoring and stopped breathing/choking during his sleep since 1986. The VA examiner acknowledged the report, but noted that the symptoms described were not confirmatory for the onset of sleep apnea in service. The VA examiner noted that the Veteran’s increasing age and weight gain over time were risk factors for OSA, and noted that the condition was not diagnosed until 25 years after the Veteran’s active service. Based on a thorough review of the medical evidence, including the well-known relationship between a high body mass index and the development of OSA, and the Veteran’s classification as near the obese-range BMI at the time of diagnosis, the VA examiner concluded that the Veteran’s OSA was less likely than not related to an in-service injury, event or disease, including the reports of his snoring and stopped breathing/choking in his sleep during service. The September 2020 VA medical opinion addressed the Veteran’s contention that his OSA was a result of an incident when he was punched in the nose during service. The VA examiner concluded that the Veteran’s OSA was less likely as not related to the reported incident because her physical examination of the Veteran’s nose reflected a straight nasal septum and nasal patency bilaterally. The Veteran’s theories of secondary service connection were addressed in the VA examinations and medical opinions from September 2016, September 2019, March 2020 and September 2020. The September 2016 VA examiner opined that there was no medical basis for service connection as secondary to hypertension because that condition is not a known etiological factor for OSA. The VA examiner noted that OSA was a distinctly specific entity caused by upper airway obstruction. The September 2019 VA examiner opined that the Veteran’s OSA was less likely than not due to the Veteran’s service-connected rhinitis. The VA examiner based her opinion on the minimal nasal symptoms experienced by the Veteran and the existence of other risk factors, including obesity and large neck girth. The VA examiner noted that the weight of medical literature did not support a causal relationship between hypertension and OSA. The VA examiner also opined that there was no aggravation of the Veteran’s OSA by his rhinitis or his hypertension, based on the Veteran’s minimal nasal symptoms and the weight of the medical literature. The March 2020 VA medical opinion concluded that the Veteran’s OSA was less likely than not proximately due to or related to any of his service-connected disabilities, citing the weight of medical literature, the lack of support for a relationship between OSA and hypertension or diabetes mellitus, the Veteran’s minimal rhinitis symptoms and his other risk factors for OSA, including increasing age, male gender and increasing weight. The VA examiner also concluded that the weight of literature did not support an aggravating relationship between the Veteran’s service-connected disabilities and his OSA. The VA examiner noted that the Veteran’s OSA had improved after his lung cancer and that there was no evidence of worsening caused by nasal congestion. The September 2020 VA medical opinion addressed the connection between the Veteran’s obesity and his service-connected disabilities and concluded that it was less likely than not that his disabilities caused him to become obese. The VA examiner noted that the weight of medical literature did not support a finding that his service-connected disabilities, including his medication, caused obesity. The VA examiner specifically noted that while medical literature shows that many persons with diabetes may also have elevated body mass indexes, the weight of literature did not show diabetes mellitus as being a direct cause of obesity. The Board finds the opinions of the VA examiners competent and entitled to probative weight. The opinions are based on thorough reviews of the relevant medical literature, physical examinations of the Veteran and consideration of the Veteran’s lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Moreover, there is no competent medical opinion of record that contradicts the VA opinions. The Board acknowledges the Veteran’s contentions that his OSA is related to service or a service-connected disability, and his submission of medical literature in support of his claims. While the Veteran is competent to relate his observable symptoms, there is no evidence in the record that he has the experience, training or education necessary to make an etiology opinion. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical literature submitted by the Veteran does not address the specific facts of this case. See Mattern v. West, 12 Vet. App. 222, 228 (1999). Moreover, the VA examiners consistently opined that the weight of medical literature is against a finding in favor of service connection on a direct or secondary basis. As the probative clinical etiology opinions are against a finding of service connection on a direct or secondary basis, service connection for OSA, to include as related to herbicide exposure and as secondary to service-connected disabilities, is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, Associate 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.