Citation Nr: 21009847 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-25 983A DATE: February 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to diabetes mellitus II, is denied. FINDING OF FACT The Veteran’s OSA onset many years after service, is not the result of an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the March 2018 VA Form 21-22, Appointment of Individual as Claimant’s Representative, indicates that the representative “does not provide representation at the [Board]”; however, the representative provided representation for the Veteran at the July 2020 virtual hearing before the Board. Accordingly, the Board finds that the agent’s representation is ongoing. A transcript of the hearing is associated with the record. On the record at the hearing, the Veteran waived RO consideration of any additional evidence added to his claims file. The appeal was previously before the Board in October 2020, when it was remanded for updated clinical records and medical opinions. The Board finds there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his OSA is related to his type II diabetes mellitus. See December 2017 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, and July 2020 Board hearing transcript. The record does not show (and the Veteran does not claim) that his OSA began during active service. His service treatment records (STRs), including his September 1963 enlistment and September 1967 separation examinations, are silent for treatment or diagnoses of respiratory or sleep complaints, including sleep apnea. VA treatment records include an October 2016 report of Sleep Medicine Consult which notes the Veteran reported “a loud snore, daytime fatigue and witnessed apneas at night.” He underwent PSG (polysomnography) sleep study in December 2016 and was diagnosed with moderate OSA. These records also show obesity included on the Veteran’s Computerized Problems List. See also October 2018 private Baseline Polysomnography report, completed in connection with the Veteran’s September 2018 VA examination, showing a diagnosis of obstructive sleep apnea. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service event for service connection purposes, obesity may serve as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 30 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran’s obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran’s service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 30 Vet. App. at 306-7. A November 2018 VA medical opinion, based on the September 2018 examination of the Veteran and review of his claims file and the relevant medical literature, reflects the determination that “the Veteran’s OSA is associated with diabetes but is less likely than not proximately due to DM (diabetes mellitus).” The examiner explained that “Type 2 diabetes is characterized by insulin resistance and relative insulin deficiency. Insulin resistance is aggravated by aging, physical inactivity, and obesity.” The examiner further explained that OSA “alters glucose metabolism, promotes insulin resistance, and is associated with development of type 2 diabetes. Obesity is a key moderator of the effect of OSA on type 2 diabetes. However, chronic exposure to intermittent hypoxia and other pathophysiological effects of OSA affect glucose metabolism directly, and treatment of OSA can improve glucose homeostasis.” In addition, the examiner explained that, in OSA, “an episode of apnea is caused by a dynamic narrowing of the upper airway while sleeping. Increases in pharyngeal soft tissue, which is commonly seen with obesity also reduces the airway diameter. Neuromuscular dysfunction may prevent maintenance of pharyngeal dilator tone, especially during sleep in people with OSA who have a narrowed pharynx.” In his February 2019 VA Form 21-0958, Notice of Disagreement (NOD), the Veteran referred to medical articles which found OSA “is associated with development of type 2 diabetes.” Specifically, “[a] study published in 2014 in Diabetes Care found” OSA had “detrimental effects on sugar control,” “[a]nother study published in 2013 Family Medicine states, people with type 2 diabetes can have nearly 50-50 chance of being diagnosed with a sleep disorder” and “a study published in 2015 in American Journal of Respiratory and Critical Care Medicine found that wearing a CPAP device for eight hours can improve blood sugar levels.” These articles are not available for review because, despite agreeing to do so at his July 2020 Board hearing, the Veteran did not submit copies of these articles for inclusion in his claims file. See also September 2019 VA Form 9, Appeal to Board of Veterans’ Appeals (substantive appeal). Notably, although the summaries provided by the Veteran suggest an association between OSA and diabetes mellitus, the suggestion is that OSA has a detrimental impact on diabetes mellitus. These medical articles, as summarized in the NOD, support the opinion of the November 2018 VA examiner (that there is an association between OSA and diabetes mellitus) and do not suggest that the Veteran’s diabetes mellitus may cause or aggravate his OSA. VA treatment records include a March 2019 note that the Veteran’s representative requested a medical opinion on whether the Veteran’s sleep apnea is a result of his diabetes. The physician responded that “[t]here are data that links diabetes mellitus and obstructive sleep apnea but the studies show that people with severe sleep apnea are at risk to develop diabetes, not the inverse. I am unable to state that his sleep apnea is caused by his diabetes.” Because the November 2018 examiner did not provide an opinion as to whether the Veterans’ service-connected diabetes mellitus aggravates his OSA, a supplemental opinion was obtained in December 2020. The examiner determined: (1) OSA is unrelated to service because “STRs, including separation exam, are all silent regarding symptoms of diagnosis of OSA. In addition, the Veteran’s BMI at separation was 25.8. His BMI at the time of his sleep study in 2018 was 36.5, consistent with obesity. His obesity is at least as likely as not the proximate cause of his severe OSA, neither of which were present at the time of separation. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. (2) “The Veteran’s OSA is less likely than not aggravated beyond its natural progression by [his service-connected] diabetes mellitus.” The examiner explained that “[t]he medical literature supports a causal link between OSA and diabetes mellitus. OSA has a known adverse effect on insulin resistance and glucose homeostasis, aggravating hyperglycemia and diabetic control. However, there is no evidence in the medical records or in the medical literature that diabetes mellitus causes or aggravates OSA. (3) The Veteran’s obesity was less likely than not caused or aggravated beyond its natural progression by his service-connected diabetes. The examiner explained that “[o]besity is a well documented cause of type 2 DM [diabetes mellitus], and at least as likely as not the major cause of type 2 DM in the general population. Obesity causes insulin resistance which leads to hyperglycemia, and ultimately pancreatic exhaustion with reduced ability to secrete insulin, both factors leading to the development of type 2 DM. However, there is no evidence in the Veteran’s medical records or in the medical literature that type 2 diabetes mellitus causes obesity. While treatment of type 2 diabetes mellitus with insulin or medication that stimulates insulin secretion can aggravate weight gain, the Veteran was obese (weight 272 in 2009 versus 275 in 2018) at the time his pre-diabetes was diagnosed in 2009 and before he was diagnosed or treated for type 2 diabetes mellitus.” It is not in dispute that the Veteran has been diagnosed with OSA during the appeal period and he is service-connected for diabetes mellitus. However, the competent (medical) evidence shows that OSA was initially diagnosed in the December 2016, over 49 years after the Veteran’s separation from service, and is not caused or aggravated by his service-connected diabetes mellitus. The November 2018, March 2019 and December 2020 VA opinions (and the medical literature referenced by the Veteran) note OSA has an adverse impact on control of diabetes; however, the examiners agree that there is no evidence in the claims file or the medical literature to support the contention that diabetes mellitus causes or aggravates OSA. The evidence also shows that the Veteran’s obesity does not constitute an “intermediate step” between his service-connected diabetes mellitus and OSA. While the December 2020 examiner opined the Veteran’s “obesity is at least as likely as not the proximate cause of his severe OSA,” the examiner also opined that the Veteran’s obesity is not caused or aggravated by his service-connected diabetes mellitus because he was obese at the time his pre-diabetes was diagnosed in 2009. The examiner explained that there is no evidence in the Veteran’s medical records or in the medical literature that diabetes mellitus causes obesity and, based on a review of his medical history, the record does not show his diabetes mellitus has aggravated his obesity. The November 2018 and March 2019 opinions with respect to secondary service connection and the December 2020 opinions with respect to direct service connection and aggravation warrant substantial probative weight because they are based on examination of the Veteran and review of his claims file, are consistent with the evidence of record and are accompanied by a sufficient explanation of why the complaints and findings shown do not support a nexus between the Veteran’s OSA and obesity and his service or service-connected diabetes mellitus. Because the opinions include rationale that cite to factual data and the providers are medical professionals competent to offer the opinions, they are probative evidence in this matter. Because there is no competent (medical) evidence in the record which suggests that a disease, injury, or event in service or a service-connected disability may have been an etiological factor for the Veteran’s development of OSA, the opinions against his claim are persuasive. Regarding the medical articles referred to by the Veteran in his NOD (and September 2019 substantive appeal), it is noted that medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, medical articles tend to be general in nature and do not relate to the specific facts in a given claim. The medical articles referenced by the Veteran have not been submitted for inclusion in the record, despite the request that he do so, and are not combined with an opinion of a medical professional. As such, they are less probative and persuasive with respect to the issue of whether his OSA is related to service and/or caused or aggravated by his service-connected diabetes mellitus. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case – whether the Veteran’s OSA can be related to service and/or his service-connected diabetes mellitus - falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, any assertions by the Veteran as to diagnoses and causation have no probative value. The preponderance of the evidence is against the claim of service connection for OSA; therefore, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 54-56. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.