Citation Nr: 21009374 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-23 760 DATE: February 22, 2021 ORDER Entitlement to service connection for osteoarthritis of the joints, other than spine, is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The evidence of record does not demonstrate that the Veteran has current osteoarthritis, other than spine, that was manifested during active service or is otherwise related to service. 2. The evidence of record does not demonstrate that sleep apnea is due to service, and sleep apnea has not been shown to be proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for ostearthritis of the joints, other than spine, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1976 to December 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans (VA) Regional Office (RO). In April 2019, the Board remanded the claims for further development, to include clarification from the Veteran regarding his osteoarthritis claim and to obtain private treatment records and a VA medical opinion regarding his sleep apnea. The Board is satisfied that there has been substantial compliance with the remand directives, and it may proceed with a decision at this time. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For certain chronic disorders service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Osteoarthritis The Veteran is seeking service connection for osteoarthritis which he claims causes pain in “different parts of my bones.” The Veteran is already service connected for a lumbar spine disability. The Veteran has submitted buddy statements from his massage therapist and a friend who has known him since birth. The massage therapist noted the pain in his back, knees, legs and neck and stated that he has not shown any improvements. The buddy statement from the friend notes that the Veteran told her about his back problems and that he has arthritis that bothers his arms and legs. In a January 2014 VA examination of his back, degenerative arthritis of the spine was noted, and the examiner confirmed the arthritis through imaging. Also, in January 2014, the Veteran underwent a cervical spine VA examination and arthritis was not found on imaging. In a December 2018 statement, a private physician concluded that it is more likely than not that the Veteran’s osteoarthritis of the spine is secondary to the “increased wear and tear he experienced during service” and the increased weight gain from his lumbar disability and depression. The private medical opinion references an in-service injury to the Veteran’s lower back. In April 2019, the Board remanded this case for the Veteran to clarify which joints (other than the spine) he is claiming are affected by osteoarthritis. The Veteran did not respond to a December 2019 letter from the RO asking for clarification of his arthritis claim. The Board has reviewed all of the evidence of record and concludes that the preponderance of the competent and credible evidence is against the claim of service connection for osteoarthritis of unspecified joints. Service treatment records are entirely negative for arthritis, or complaints or symptoms relating to any joints other than the back (which is not at issue). Post-service, while some medical records reflect that the Veteran complained of joint pain, there is no x-ray evidence of arthritis of any joints (aside from the spine). Moreover, the private physician’s opinion clearly referenced the Veteran’s lumbar spine disability, which is not at issue. The Board also finds that there is no competent and credible evidence of record showing that the Veteran has current osteoarthritis that is related to service or was manifested to a compensable degree in the first year after active service. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether he has arthritis of the joints) falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran’s assertions cannot constitute competent medical evidence in support of this claim. Accordingly, service connection for osteoarthritis must be denied. 2. Sleep Apnea The Veteran contends that his obstructive sleep apnea is secondary to his service-connected depression and medications that he takes for his depression and lumbar spine disability. A July 2008 private polysomnography report confirms the Veteran’s diagnosis of obstructive sleep apnea. The Veteran’s service treatment records do not show any treatment or complaints of sleep apnea. In a December 2018 statement, a private physician opined that the Veteran’s sleep apnea is secondary to a combination of his service-connected depression as well as the medications used to treat his service-connected depression and lumbar disability. The private physician referenced medical literature which showed that medications such as opioids, sleeping pills and antidepressants can all contribute to the development of and worsening of obstructive sleep apnea. The physician also noted that medical literature showed that people with depression were found to be five times more likely to suffer from sleep-disordered breathing. Following a February 2020 VA sleep apnea examination, the examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of his service. The examiner explained that there was no evidence of sleep apnea during service. The examiner also opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of a service-connected condition, to include medications used for treatment of a service-connected condition (depressive disorder, lumbar strain, left lower extremity radiculopathy, gastroesophageal reflux disease, hemorrhoids and erectile dysfunction). The examiner explained that obstructive sleep apnea is a condition of the upper airway and is caused by obstruction in the area of the oropharynx. This can be caused by weight, enlarged tonsils or adenoids, excessive overbite, deviated nasal septum, menopause, large neck circumference, male sex and obesity. The examiner noted that the Veteran’s sleep apnea was not caused by any of his service-connected disorders, to include medications used to treat the disorders. Following a thorough review of all the evidence of record, the Board finds that the February 2020 VA medical opinion is more probative than the December 2018 private opinion. As the competent medical evidence does not reflect that the Veteran’s sleep apnea was either incurred in or aggravated by active military service or secondary to a service-connected disability, the claim must be denied. In finding so, the Board recognizes the VA examiner’s opinion to be most probative as the examiner reviewed the Veteran’s complete medical history and gave an opinion based on this review. On the other hand, the private physician offered a rationale based on medical literature that only generally discussed medications used to treat conditions that may cause or worsen sleep apnea. The information is not specific to the Veteran. As such, the private examiner’s opinion is afforded little probative weight. (Continued on next page) As the preponderance of the evidence is against the claim, service connection for sleep apnea is not warranted. The doctrine regarding resolution of reasonable doubt in the Veteran’s favor is not applicable. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.