Citation Nr: 21012287 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-34 701 DATE: March 4, 2021 ORDER Service connection for sleep apnea, to include as secondary to the service-connected right maxillary sinusitis with chronic rhinitis and headache (sinusitis with rhinitis) is denied. FINDINGS OF FACT 1. There was no respiratory injury or disease during service other than sinusitis and rhinitis, and no OSA symptoms were manifested during service. 2. OSA was manifested years after service and is not causally or etiologically related to service. 3. OSA was neither caused nor worsened beyond the natural progression by the service-connected sinusitis with rhinitis. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to the service-connected sinusitis with rhinitis and headache, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1989 to December 1989, and the U.S. Army from March 1991 to September 1998, January 2003 to May 2004, February 2008 to June 2008, and June 2008 to July 2009. This matter was originally on appeal from an August 2014 rating decision. In November 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). In April 2019, the Board denied service connection for sleep apnea, to include as secondary to the service-connected sinusitis with rhinitis. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court or CAVC). The April 2019 Board decision was vacated pursuant to a March 2020 Joint Motion for Remand (Joint Motion) on the bases that the Board improperly relied upon the August 2014 VA medical opinion in finding that the service-connected sinusitis with rhinitis did not aggravate sleep apnea because the VA examiner did not address the issue of secondary aggravation (38 C.F.R. § 3.310). In December 2020, the Board remanded the appeal for service connection for sleep apnea for a supplemental VA medical opinion that addressed the question of whether sleep apnea was secondarily aggravated by the service-connected sinusitis with rhinitis. Because January 2021 supplemental VA medical opinion adequately addresses the question of secondary aggravation (38 C.F.R. § 3.310) by service-connected sinusitis with rhinitis, the Board finds that there was compliance with the prior remand directives. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of severe obstructive sleep apnea syndrome is not listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable. Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Service Connection for Sleep Apnea Analysis The Veteran contends that the current obstructive sleep apnea was caused or aggravated by the service-connected sinusitis and rhinitis. In the alternative, the Veteran contends that that sleep apnea is related to service, and seeks service connection on these bases. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence shows no respiratory injury or disease other than sinusitis and rhinitis was manifested during service and no sleep apnea symptoms were manifested during service. The service treatment records are absent of any report, complaint, diagnosis, or treatment for sleep apnea or symptoms of sleep apnea. On the May 2008 service report of medical history, the Veteran checked “No” when asked if she then had or had ever had frequent trouble sleeping. At the May 2008 service separation examination, the lungs and chest were clinically evaluated as normal. Subsequent post-deployment health assessments in May 2009, June 2009, and October 2009 show that the Veteran checked several listed conditions for which she currently had a health concern or a condition that she felt was related to her deployment such as bad headaches, back pain, difficulty making decisions, and increased irritability, and consistently did not check that the listed condition of sleep problems or sleeping problem and still feeling tired after sleeping. Because the service treatment records are complete, show treatment for another respiratory illnesses such as sinusitis and rhinitis during service without any notation of sleep apnea or sleep apnea symptoms, the lungs and chest were clinically evaluated at the May 2008 service separation examination and determined to be normal, and the Veteran was specifically asked if she had experienced frequent trouble sleeping on several occasions during service such as the May 2008 service report of medical history and post-deployment health assessments in May 2009, June 2009, and October 2009, and each time denied having any sleep problems, the Board finds that a respiratory injury, a respiratory disease, and sleep apnea are conditions that would have ordinarily been recorded during service had they occurred or been present; therefore, the lay and medical evidence generated contemporaneous to service, which shows no respiratory injury or disease other than sinusitis and rhinitis, and no sleep apnea or sleep apnea symptoms during service, is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of respiratory injury or disease other than sinusitis or rhinitis, or sleep apnea or sleep apnea symptoms during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The weight of the evidence is against finding that sleep apnea is otherwise causally or etiologically related to service. Sleep apnea was diagnosed by sleep study in May 2012, three years after service separation. Considered together with the evidence showing no sleep apnea or sleep apnea symptoms during service or at service separation, the absence of symptoms or diagnosis of sleep apnea for three years after service is an additional factor that weighs against a finding of service incurrence. See Buchanan, 451 F.3d at 1336; see also Maxson, 230 F.3d at 1333. The Board has considered the lay statements from the Veteran, as well as the statements from service members from 2017 to 2020, that collectively report that OSA symptoms such as snoring and apneic episodes were manifested during service and continued thereafter; however, because the accounts are inconsistent with, and outweighed by, the lay and medical evidence contemporaneous to service showing no respiratory injury, disease, or symptoms during service, no OSA symptoms, diagnosis, or treatment during service, the Veteran’s own in-service statements repeatedly and consistently denying having any sleep problems, and the post-service lay and medical evidence showing an onset of OSA approximately three years after service separation, the lay accounts are not deemed credible, so are of minimal probative value. In a November 2020 statement, a private physician considered the evidence of record and opined that it was as likely as not that the Veteran’s OSA started in service; however, the opinion was based primarily on the materially inaccurate factual premise that OSA symptoms occurred during service; therefore, the purported opinion is of no probative value. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The weight of the evidence is against finding that sleep apnea was caused or worsened beyond the natural progression by the service-connected sinusitis and rhinitis. After review of the record and interview and examination of the Veteran, the August 2014 VA examiner opined that it was less likely than not (i.e., less than 50 percent probability) that a sleep apnea condition was proximately due to or the result of the service-connected sinusitis with rhinitis. In support of the medical opinion, the August 2014 VA examiner explained that the physical examination did not reveal any significant obstruction of nasal passages, sleep apnea mostly occurred due to nasal passage obstruction, and sinus infection did not cause obstruction of the airway passages. In the January 2021 supplemental VA medical opinion, the VA reviewer reviewed the record and provided a negative medical opinion on the question of whether the service-connected sinusitis with rhinitis worsened sleep apnea beyond its natural progression. The January 2021 VA reviewer wrote that the Veteran had not required treatment for rhinitis or sinusitis to the degree that would support progression to sleep apnea, or impact on the severity of the Veteran’s sleep apnea. The January 2021 VA reviewer noted that the Veteran was shown to have obesity with a body mass index (BMI) of 30.6 in September 2012, and fat deposits in the upper respiratory tract narrow the airway in obese people. The January 2021 VA reviewer explained that there was a decrease in muscle activity in this region, which led to hypoxic and apneic episodes and ultimately resulted in sleep apnea. The August 2014 VA examiner and January 2021 VA reviewer have medical expertise, had adequate information on which to base the medical opinion, and provided adequate rationale based on an accurate medical history and known medical principles. The Veteran’s attorney argues that the January 2021 supplemental VA medical opinion was inadequate because the VA reviewer did not expressly note the choice of opinion (i.e., negative or positive) under section III on the examination report and wrote that it was not clear that the service-connected sinusitis with rhinitis aggravated sleep apnea beyond its natural progression. After carefully considering both the language and the context of this opinion, the Board finds that the overall medical opinion, when viewed in the context of the rationale provided, clarifies that the January 2021 VA reviewer was actually providing a negative medical opinion on the question of secondary aggravation that weighs against such relationship. The January 2021 supplemental VA medical opinion is not rendered inadequate based on having used the “not clear” language or the failure to check an option specifying whether the VA reviewer providing a positive or negative medical opinion on the question of secondary aggravation. The attorney has also argued that the January 2021 supplemental VA medical opinion is inadequate because the VA reviewer only discussed the sleep apnea within the context of the 2012 diagnosis and did not consider the reported long-standing symptomatology stemming from service. The attorney also argues that the August 2009 complaint of sleep disturbance supports finding that sleep apnea symptoms were manifested during service because it occurred only about a month after service separation. The January 2021 supplemental VA medical opinion is not rendered inadequate on these bases because the account of sleep apnea symptoms during service and continuous since service, having been found to be outweighed by the other evidence of record so as not to be credible, are factually inaccurate assumptions. The weight of the lay and medical evidence contemporaneous to service show that there were no sleep apnea symptoms manifested during service. Additionally, the Veteran’s August 2009 complaints of sleep disturbance documented in post-service VA treatment records were associated with right shoulder pain and adjustment disorder not otherwise specified, not sleep apnea. There was no mention of any sleep apnea symptoms such as snoring and apneic episodes at that time. Consequently, such complaints do not support a finding that sleep apnea was manifested during service and/or shortly after service separation. The attorney argued that the January 2021 supplemental VA medical opinion was inadequate because the VA reviewer wrote that the Veteran had not required treatment of sinusitis with rhinitis to the degree that would support progression to sleep apnea but did not provide further explanation on what degree of treatment would be required for the sinusitis with rhinitis to impact her sleep apnea; however, the explanation provided by the VA reviewer that sinusitis with rhinitis had not required treatment to the degree that would show progression of sleep apnea, considered together with the VA reviewer’s opinion that there had been no increase in severity of sleep apnea since June 2012 (the same year that sleep apnea was diagnosed), adequately addresses the question of whether sleep apnea was worsened beyond the natural progression by the service-connected sinusitis with rhinitis. There was no need for the January 2021 VA reviewer to also explain what treatment would be required to show that sinusitis with rhinitis impacted the sleep apnea. The attorney argued that the January 2021 VA reviewer did not reasonably explain why the Veteran’s obesity, rather than sinusitis with rhinitis, would better account for her sleep apnea; however, the August 2014 VA examiner had already explained that the physical examination did not reveal any significant obstruction of nasal passages, sleep apnea mostly occurred due to nasal passage obstruction, and sinus infection did not cause obstruction of the airway passages. Because such explanation of known medical principles would apply to the theory of secondary aggravation by the service-connected sinusitis with rhinitis, in addition to secondary causation, there was no need for the January 2021 to explain any further why obesity would better account for the Veteran’s sleep apnea as it would have been duplicative of what had already been explained by the August 2014 VA examiner. For these reasons, the Board finds that the August 2014 VA medical opinion and January 2021 supplemental VA medical opinion that collectively addressed the question of whether sleep apnea was either caused or aggravated by the service-connected sinusitis with rhinitis are adequate and of significant probative value. In the November 2020 medical opinion, the private physician opined that it was as likely as not that sinusitis and rhinitis contributed to the development of OSA; however, the opinion was based on the inaccurate factual premise that OSA symptoms developed during active service and continued after service, so it is of no probative value. See Bardwell, 24 Vet. App. at 36; see also Reonal, 5 Vet. App. at 461. Although the Veteran has asserted that OSA was causally related to service or was caused or aggravated by the service-connected sinusitis with rhinitis, she is a lay person and, under the specific facts of this case that include no in-service OSA symptoms, and documented post-service onset of symptoms and diagnosis of OSA years after service, does not have the requisite medical training or credentials to be able to render an opinion regarding the cause of her OSA. The etiology of the Veteran’s OSA is a complex medical etiological question dealing with the origin and progression of the respiratory system. OSA is a disorder diagnosed primarily on symptoms, clinical findings and physiological testing and would require knowledge of the respiratory system and the potential relationship between different respiratory disabilities such as OSA and the service-connected sinusitis with rhinitis. While the Veteran, as a lay person, is competent to report respiratory symptoms that she experiences at any time, she is not competent to opine on whether there is a link between OSA, symptoms of which were manifested years after service, and active service or the service-connected sinusitis with rhinitis based on secondary causation or secondary aggravation because such opinions require specific medical knowledge and training. For these reasons, the Veteran’s unsupported lay opinion is of no probative value and is outweighed by the VA medical opinion evidence showing no causal relationship between service or the service-connected sinusitis with rhinitis and OSA, and no aggravation relationship between service-connected sinusitis with rhinitis and OSA. Thus, the evidence weighs against a finding that OSA was caused by service or was otherwise caused or worsened beyond the normal progression by the service-connected sinusitis with rhinitis. In consideration of the foregoing, the preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for OSA, including as secondary to the service-connected sinusitis with rhinitis; consequently, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Palmer, 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.