Citation Nr: 21008246 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 18-20 347 DATE: February 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Veteran’s OSA did not have its inception during active service, is not causally related to his active service, nor is it causally related to or aggravated by a service-connected disability, to include residuals of a nasal fracture. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1131; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1959 to June 1962. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for OSA. In April 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in September 2019. At that time, the Board remanded the claim for further evidentiary development, to include an addendum medical opinion. This matter was most recently before the Board in October 2020. At that time, the Board again remanded the claim for further evidentiary development, to include an addendum medical opinion. The Board notes that in addition to the issue discussed immediately above, the Veteran subsequently appealed the issue of entitlement to service connection for a back disability. The Veteran has also appealed the issues of entitlement to service connection for bilateral hearing loss and tinnitus. Those issues are part of separate appeal streams and will be the subject of separate Board decisions if otherwise in order. Entitlement to service connection for OSA is denied. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty 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 which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his OSA is caused or aggravated by his service-connected residuals of an in-service nasal fracture. See May 2017 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The Veteran’s service treatment records (STRs) are negative for findings of sleep apnea, complaints of sleep apnea symptoms, or other sleep-related symptomatology. A May 2017 sleep study noted a diagnosis of moderate OSA. See May 2017 Polysomnography Report. The Veteran was afforded a VA examination in August 2017. The examiner noted a 2017 diagnosis of OSA. The Veteran reported daily use of a CPAP machine. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s service-connected residuals of a nasal fracture. The examiner opined in pertinent part, 11/4/1959 Nasal Bone X-ray showed fracture of nasal bone with slight angulation. Indeterminate if this is a fresh fracture or several weeks old. X-ray of facial bone dated 8/14/2017 showed no evidence of displaced nasal fracture. Regarding aggravation, the examiner opined in pertinent part, No evidence that showed that his sleep apnea aggravated beyond its natural progression of nonservice connected or service connected nose/septum injury. At the April 2019 Board hearing, noted above, the Veteran testified that he was diagnosed with a deviated septum during active service, which he believed caused and/or aggravated his OSA. See April 2019 Transcript of Hearing, pages 3-5. Pursuant to the Board’s September 2019 remand instructions, a VA medical opinion was obtained in December 2019. After reviewing the record, the examiner rendered a negative etiological opinion regarding the Veteran’s OSA. The examiner opined in pertinent part, It is less likely than not that the veteran[’]s claimed obstructive sleep apnea is proximally due to a result of his service-connected residuals of an in-service nasal fracture. There was reference in the service treatment records of a deviated septum however that has not been verified. It appears as though the fracture was of the nasal bones at the bridge of the nose area with minimal deviation and no indication of impairment of respiration. There is nothing in the literature to support that such a fracture would be able to cause obstructive sleep apnea which develops in the throat, not at the nose. Although a fractured nose, with significant pathology by way of deviation of bony anatomy may cause snoring, and may cause difficulty using CPAP, it does not cause sleep apnea, and in this case, there is no indication of any significant malalignment of the fracture. There is no competent medical evidence that the nasal fracture which was non-displaced in any significant fashion in 1959, aggravated sleep apnea beyond its natural progression, which was not diagnosed until over 50 years later. Therefore, it is not possible for a condition that did not exist to be aggravated. Pursuant to the Board’s October 2020 remand instructions, a VA medical opinion was obtained in October 2020. After reviewing the record, the examiner determined that the Veteran’s OSA was less likely than not caused by his service-connected residuals of a nasal fracture. The examiner opined in pertinent part, [The Veteran] in fact does not have any physical exam findings indicative of residuals from a nasal fracture nor does he have radiological findings of residuals from a nasal fracture. He was seen by otolaryngology in 2014 with normal nasal exam. Veteran was diagnosed with OSA in 2017. At that time he had a BMI of 26 (overweight) and a Mallampati score of 4, which is high and puts him at increased risk of OSA. In addition, he was 75 years old and the incidence of OSA increases with age. Regarding aggravation, the examiner opined in pertinent part, Less likely that his OSA is aggravated by his nasal fracture residuals. As I state above, he does not have any objective findings of residuals from a nasal fracture. He has had repeated normal nasal exams. Normal nasal xrays. After a review of the evidence, the Board finds that service connection for OSA as secondary to the Veteran’s residuals of a nasal fracture is not warranted. As set forth above, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). With regard to current disability, the Board finds sufficient clinical evidence to establish that the Veteran currently has OSA. The May 2017 sleep study noted a diagnosis of moderate OSA. Additionally, the August 2017 VA examination noted a diagnosis of OSA. In addition, the record reflects that service connection is in effect for residuals of a nasal fracture. See e.g. September 1964 rating decision granting service connection for residuals of a nasal fracture. The remaining issue, therefore, is whether the Veteran’s current OSA was caused or aggravated by his service-connected residuals of a nasal fracture. In this case, the Board finds that the probative evidence is against a finding that the Veteran’s OSA was caused or aggravated by his service-connected residuals of a nasal fracture. In that regard, the Board assigns great probative weight to the October 2020 VA medical opinion, as the examiner reviewed the Veteran’s claims file in its entirety. After considering the record, the examiner concluded that the Veteran’s OSA was not caused or aggravated by his service-connected residuals of a nasal fracture. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran’s OSA was not secondarily related to or aggravated by his residuals of a nasal fracture. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the August 2017 VA examination, which was found to be inadequate in the September 2019 Board remand to the extent the examiner failed to provide a clear rationale regarding causation and apply the correct legal standard on the question of aggravation. The Board also assigns less probative weight to the December 2019 VA medical opinion, which was found to be inadequate in the October 2020 Board remand to the extent the examiner only addressed the question of aggravation by a service-connected disability during active service. In addition, the Board assigns less probative weight to the Veteran’s hearing testimony indicating that his OSA was caused or aggravated by his service-connected residuals of a nasal fracture. Although the Veteran is competent to describe symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the October 2020 VA examiner, given her clinical expertise and the rationale she provided. (Continued on the next page)   Regarding the theory of direct service connection, the Board notes that the record contains no indication, nor does the Veteran contend, that his OSA had its inception during active service or is otherwise causally related to an in-service disease or injury. Based on the foregoing, as the preponderance of the evidence is against the Veteran’s claim of service connection for OSA, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran’s claim for OSA, to include as secondary to his service-connected residuals of a nasal fracture, is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.