Citation Nr: 21007824 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-08 783 DATE: February 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran’s OSA is not secondary to service-connected migraine headaches and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for OSA due to service or service-connected migraine headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from June 1994 to September 2002. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This claim has been before the Board on two separate occasions. The first time in June 2018, and the second time in June 2019. On each occasion, the claim was remanded for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may also be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for obstructive sleep apnea The Veteran contends that he has OSA that either had in-service onset or is secondarily related to his service-connected migraine headaches. He also claims his OSA is related to his service in the Persian Gulf or his exposure to jet fuel and chemicals during his service as he worked as an aircraft fuel systems journeyman. I. Presumptive Service Connection The claim of OSA is also one for which presumptions of service connection are available. While the record is unclear of all the deployments the Veteran had during service, he claims service in Iraq and Saudi Arabia, which would entitle him to be considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). However, in order for a condition to be a qualifying chronic disability, the condition must be a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii); Stewart v. Wilkie, 30 Vet. App. 383, 391 (2018) (holding that an illness is a medically unexplained chronic multi-symptom illness where either the etiology or the pathophysiology of the illness is inconclusive). In a March 2019 VA examination, the examiner determined the current diagnosis of OSA does not indicate a multisymptom undiagnosable condition, and that OSA has a well-understood pathophysiology making it unlikely to be related to Southwest Asian environmental exposure. Further stating, OSA is not a VA presumptive condition related to Gulf War syndrome. Since OSA has a well-understood etiology and pathophysiology, is not considered a MUCMI, and is not an undiagnosed illness, the Board finds that presumptive service connection for OSA as related to service in the Southwest Asian theater or as an undiagnosed illness is not warranted. II. Secondary Service Connection The Veteran contends his OSA is secondary to his service-connected disabilities, to include migraine headaches. However, the Veteran claims in his October 2020 correspondence that he believes his sleep apnea is what caused his migraine headaches, and not the other way around. He claims his statements have been flipped backward and that his OSA has caused his migraine headaches. The Board acknowledges the Veteran’s claims and will address them in the discussion for direct service connection. However, as the theory of entitlement to secondary service connection has been presented through the record, it is necessary for the Board to consider it. In March 2012, the Veteran had a polysomnogram performed, and he was diagnosed with moderate obstructive sleep apnea. Thus, the Board finds the requirement for current disability is met. See Shedden, 381 F.3d at 1167. The Veteran underwent a VA examination in April 2015. The Veteran reported he had difficulty remaining awake while driving twelve miles or more, he would fall asleep during meetings at work, and suffered from fatigue and a choking sensation during rest at night, which lasted 6-7 hours. He claimed he had in-service fatigue and snoring and contended that his migraine headaches are related to his OSA. The examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. She continued by saying there was no diagnosis of OSA nor any documented criteria for OSA during service. She also concluded that migraine headaches are not suggested causes of OSA, opining that the Veteran’s OSA is less likely than not proximately due to or the result of the Veteran’s service-connected migraine headaches. She also stated there is no nexus between OSA and migraines. She cited literature that shows sleep disturbances and migraines could be coincidental, but that there is no literature to support OSA is caused by migraines. She did affirm that medical literature supports OSA can cause increased migraine headaches, but that there is no link showing migraines are caused or are related to OSA, noting the Veteran was diagnosed with migraine headaches in 1996 and OSA in 2012. In June 2018, the Board remanded the Veteran’s claim because it determined this examination was inadequate. The Veteran had another VA examination for his OSA in March 2019. In accordance with the prior remand, the examiner noted the file, lay statements, and verbal histories were all taken into consideration when forming his opinion. The examiner determined it is not at least as likely as not that the Veteran’s OSA was caused or aggravated by any of the Veteran’s service-connected conditions, including migraine headaches. Addressing the Veteran’s contentions there exists a medical relationship between his service, his service-connected disabilities, and his current OSA, the examiner stated the etiologies of OSA is a complex medical question not capable of lay observations, therefore, despite the Veteran’s statements concerning his symptoms, he is not competent to provide an opinion as to the etiologies of his OSA. The examiner continued saying that since the Veteran’s diagnosis in 2012, his treatment has remained standard airway pressure, indicating his OSA condition has not been aggravated beyond its normal progression, including by another service-connected disability. The examiner discussed the Veteran’s other service-connected disabilities. He determined the Veteran meets the risk factors for OSA: gender, gastroesophageal reflux disease (GERD), increased BMI, increased neck size, and that while GERD is a risk factor, the medical evidence does not support association is causative. Also, the majority of medical literature does not show that rotator cuff tears with repairs, hand arthritis, and gout, or medications to treat these conditions, are etiological causes for the development of OSA. The examiner opined the evidence supports it is not at least as likely as not that the current OSA is related to or caused by a service-connected condition, or that the OSA had not been aggravated beyond normal progressions, including by another service-connected condition. In June 2019, the Board remanded the claim for an addendum medical opinion. In November 2019, the Veteran underwent another VA examination for his OSA. The examiner acknowledged reviewing all the Veteran’s statements and contentions concerning the onset and symptoms of his OSA. The examiner determined the Veteran’s OSA is less likely than not proximately due to or the result of the Veteran’s service-connected migraine headaches, and that there is no evidence the migraine headaches aggravated his sleep apnea beyond its natural progression. The examiner relied on medical literature suggesting OSA may aggravate migraine headaches, but there is no support his migraine headaches aggravated his OSA, and that once the Veteran’s OSA was controlled with CPAP, his OSA symptoms appear to have stabilized, notwithstanding the comorbid diagnosis of migraine headaches. While the medical literature the Veteran provided supports migraine headaches and sleep disturbances are often comorbid, and suggests sleep disorders can exacerbate migraine headaches, in addition, poor sleep quality has been associated with increased migraine headaches frequency and disability, the examiner stated that both disorders are fairly common in the general population and that their recurrence could be coincidental. The RO requested a clarification from the examiner for this opinion, as well as clarification of the March 2019 opinion where the examiner used a double negative when opining as to whether the Veteran’s OSA has been aggravated beyond normal progression by other service-connected disabilities. In September 2020, an addendum opinion was added to the file. After reviewing the file and providing a full history of the Veteran’s OSA, the physician opined that it is less than likely the Veteran’s OSA has been aggravated by a service-connected condition. The physician determined the evidence supports it is not probable the OSA condition is aggravated beyond normal progression because evidence indicates an unchanged moderate severity in both 2012 and 2020. The Veteran had decreased AHI between March 2012, 34 events/hour, to January 2019, 26 events/hour, and a decrease in his Epworth sleepiness score from 22 in 2012 to 12 in 2019, rather than increases which would indicate progression of his OSA was present. The doctor also focuses on the fact that the Veteran has maintained the same PAP pressure without the need of medication, surgery, or interventional procedures for treatment of his OSA. At the outset, the Board finds the above examinations and opinions to be adequate. Indeed, they were based on a review of the file, examination of the Veteran and the opinions are supported by a full rationale. Upon consideration of the above, the Board finds the preponderance of the competent evidence shows the Veteran’s OSA was not caused by his service-connected migraine headaches, or any other service-connected disability. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The opinions stand uncontradicted by any other competent evidence of record. The Board acknowledges the Veteran’s belief that his OSA may have been caused or aggravated by his service connected disabilities. However, while the Veteran is competent to report symptomatology as it comes through his senses, he is not shown to have the expertise needed to provide an opinion on a complex medical question such as the etiology of his OSA. Therefore, the Board finds the preponderance of the evidence is against a finding that the Veteran’s OSA was caused by his service-connected migraine headaches, or any other service-connected disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. III. Direct Service Connection The Veteran contends his OSA was incurred during service, and that his OSA is what caused his service-connected migraine headaches. He argues that during service he recalls waking up gasping for air and snoring loudly, and that his in-service symptoms of memory loss, snoring, daytime tiredness, and headaches were all caused by untreated OSA. He said he was unaware of sleep apnea as a diagnosis, which is why he never sought treatment during service. He also claims that his exposure to certain chemicals during his service as an aircraft fuel systems journeyman caused his OSA. The examiner in the April 2015 VA examination, opined that the Veteran’s OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. She continued saying there was no diagnosis of OSA in service and no criteria documented. Again, the Board determined this examination was inadequate. During the March 2019 VA examination, the examiner addressed the symptoms the Veteran complained of during service. He concluded that the symptoms the Veteran complained about during service were all very generalized symptoms which were not unique to OSA, and on their own could neither confirm nor refute OSA in service, and therefore, their etiology could not be determined by lay observation. The examiner continued by saying with the Veteran’s reported ongoing treatment of daytime sleepiness and fatigue despite the use of a CPAP machine, would not support that these symptoms reported, as occurring during service, were related to OSA or the condition being present during service. The examiner also addressed the Veteran’s snoring in service, and opined that since snoring on its own is common and does not discriminate between those with or without OSA, the evidence of snoring in service along with the diagnosis of OSA being made more than ten years after military separation does not support a nexus linking OSA directly to service. The examiner concluded that it was not as likely the Veteran’s OSA began during or is otherwise related to the Veteran’s service. Also, during the March 2019 VA examination, the examiner also addressed the Veteran’s contentions that his OSA was caused by his exposure to jet fuel and other chemicals during his service. The examiner dismissed this claim stating that medical literature does not support any causative association between these species and the development of OSA. Also, he noted the amount of the chemical exposure and length of time of any chemical exposure is not reported or evidenced to allow for scientific determination of cause. The Veteran contends in an October 2020 correspondence that he never claimed his OSA was secondary to his service-connected migraine headaches, but that instead, his OSA caused his migraine headaches. The Veteran was diagnosed with migraine headaches in 1996, and with OSA in March 2012. Though the Veteran contends his migraine headaches were caused by his OSA, the medical records do not support this contention. As noted above, there is literature that supports the contention OSA can exacerbate migraine headaches. While it is possible his migraine headaches are currently worsened by his OSA, the medical evidence does not show the Veteran had OSA during service. The VA examiners opine the Veteran’s OSA is not related to the Veteran’s service, but that it is likely related to his risk factors: his gender, an increased BMI, and an increased neck size. Finally, the Board recognizes the Veteran’s October 2020 statement in which he expressed concern about a “fear of reprisal” from the VA for already being seen the week before. He also asserts great offense to the use of the term obese. He claims, while he is a little over his maximum weight, he is not obese. Following the allegation of “fear of reprisal,” the Veteran provided no evidence or credible statements to support his claim. Review of the file reflects the Veteran visited the VA on multiple occasions and the examinations were conducted in accordance with established guidelines. As for the use of the term obese, Dorland’s Illustrated Medical Dictionary defines obesity as an increase in body weight beyond the limitation of skeletal and physical requirement, as a result of an excessive accumulation of fat in the body. See Dorland's Illustrated Medical Dictionary 1329 (31st ed. 2007). Harvard’s medical dictionary furthers the definition by defining obesity as, “[a] body weight that is much higher than is healthy. Defined as having a body mass index (BMI) of 30 or more. Obesity puts a person at greater risk of developing numerous chronic diseases.” The record shows that the Veteran has a BMI in excess of 30. It is noted several times in the record other than the March 2019 VA examination, to include in his August 2012 pulmonary diagnostic study, April 2013 CPAP compliance note, in his October 2018 pulmonary consult, etc. While the use of the term ‘obesity” has offended the Veteran, the Board finds that the doctors and examiners have used the medical term appropriately when relaying the Veteran’s BMI. The Board finds that the preponderance of the evidence is against finding that the Veteran’s OSA was incurred in service, or is otherwise related to any event, injury, or disease in his active duty service. The Veteran makes the assertion that the symptoms he suffered during service are indicative of him having untreated OSA during service; however, as pointed out by many examiners, the symptoms he had in service are not exclusive to OSA, nor can a lay person diagnose OSA simply through lay observations. The Veteran is a lay person, without medical experience, training, or education. His statements offer no basis in personal knowledge or common lay knowledge that would give any competency. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Therefore, service connection on a direct basis must also be denied. 38 C.F.R. § 3.303. In light of the foregoing, the claim cannot be awarded on direct or secondary bases. The benefit of the doubt rule is inapplicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.