Citation Nr: 21008146 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-40 594 DATE: February 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus type II, and/or secondary to Agent Orange exposure is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea did not have its onset in and is not etiologically related to service and is not secondary to service-connected diabetes mellitus type II or due to Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, TX. The claim was previously remanded matter in November 2018 and July 2020 for additional development. It has since been returned to the Board for further appellate consideration. This appeal has been advanced on the docket. 38 U.S.C. § 7107 (2012); 38 C.F.R. § 20.900 (c) (2020). 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus type II, and/or secondary to Agent Orange exposure is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2019); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran seeks entitlement to service connection for sleep apnea. See May 2015 claim. He contends that his obstructive sleep apnea is secondarily related to his service-connected diabetes mellitus, type II and/or Agent Orange exposure. See August 2015 Notice of Disagreement. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has been diagnosed with mild positional obstructive sleep apnea syndrome with mild arterial oxygen desaturations; thus, there is a current disability. See April 2015 VA treatment record. Accordingly, the first element of service connection is met. Second, the Board finds there were in-service symptoms, but not disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A March 1969 separation report of medical history notes the Veteran reported trouble sleeping. In the October 2015 substantive appeal the Veteran reported in-service symptoms, stating he had sleep difficulties in service due to pain. The Veteran is competent to attest to sleep difficulty during his period of active service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The STRs support this assertion as well. However, the Board finds that there was no sleep apnea diagnosis during service. Accordingly, the second element of service connection is met in that there were sleep symptoms; no in-service diagnosis, however, is shown. Third, the Board finds that the evidence of record does not support a finding that the obstructive sleep apnea is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An April 2020 VA opinion was rendered. The examiner opined the obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained the obstructive sleep apnea (OSA) did not have onset in service and there was no evidence of an event in service that could have caused OSA. The examiner also provided a negative nexus opinion for service connection on a secondary basis, opining that the OSA is not caused or aggravated by the service-connected diabetes mellitus, type II or herbicide exposure. The examiner explained regarding the medical literature submitted in the Appellate Brief, the article speaks of OSA and diabetes mellitus "coexisting because of shared risk factors." however, the American Academy speaks of OSA aggravating diabetes mellitus (increasing insulin resistance/blood glucose), and not diabetes mellitus aggravating OSA. The examiner explained that neither article suggests a causal or permanent aggravation beyond natural progression relationship between diabetes mellitus and OSA. Further, regarding Agent Orange the examiner opined that there was presumed exposure in October 1968, but the reputable medical literature does not indicate a nexus between OSA and Agent Orange. The Board affords some probative weight to the April 2020 VA examination. First, the opinion was quite explanatory. Second, the examiner provided adequate secondary service-connection opinions as they were provided upon a review of the relevant evidence and the examiner provided a support explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). However, the examiner did not address the service discharge report of medical history and the October 2015 substantive appeal in providing a direct service connection opinion. Most recently, a VA examiner rendered a July 2020 VA opinion. The examiner opined the obstructive sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated there is no diagnosis of obstructive sleep apnea (OSA) while in-service; therefore, there is no nexus between the Veteran's claimed in-service injury, event, or illness to include sleep difficulty/problems sleeping and his current OSA. The examiner explained no objective medical record or reputable medical literature evidence indicates otherwise. The examiner also explained sleep difficulty/problems sleeping are nonspecific signs/symptoms which are not pathognomonic for OSA. The examiner stated the Veteran’s BMI was 33 and he had weight gain, noting that the Veteran has multiple risk factors for OSA to include but not limited to his age, male gender and obesity. The examiner stated it should be remembered that a risk factor is not the same as a cause. The examiner stated there was no OSA listed by the Veteran or diagnosed by the provider on the separation report of medical history/examination. The Board affords significant probative weight to the July 2020 VA medical opinion. It reflects a full review of the record, addresses the relevant lay statements of record, and is rendered with supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl, 21 Vet. App. at 124. To the extent the Veteran asserts his disorder had onset in service, the Board finds his assertions not to be competent lay evidence. In the August 2015 Notice of Disagreement, the Veteran asserted his sleep apnea and sleeping problems are caused from exposure to Agent Orange. In the October 2015 substantive appeal the Veteran wrote while on active duty he was treated for chest and shoulder pain. He stated he believes this is the cause of his sleep apnea since he could not sleep due to the chest and shoulder pain. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the specific etiology of sleep apnea and whether symptoms are indicative of sleep apnea, is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, the diagnosis of sleep apnea was not until at least 2015. This gap in time, approximately 46 years from service discharge, weighs against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The evidence of record thus weighs against the finding of a nexus between the Veteran’s current disability and service. Therefore, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.