Citation Nr: 21023087 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-18 248 DATE: April 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDING OF FACT The Veteran’s obstructive sleep apnea was not incurred in or related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to July 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and April 2014 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in March 2020 for further development. In September 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to service connection for obstructive sleep apnea. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran was first diagnosed with obstructive sleep apnea after a sleep study in March 2002, which revealed that the disability was considered severe at the time. See March 2002 private treatment records; June 2020 VA examination. The Veteran’s mother reported that the Veteran started to snore while he slept at about age 10 or 11. Diabetes and snoring ran in the family on his father’s side. She treated him for the snoring by turning him on his side, but sometimes it was so loud that he woke up several times at night. She considered his snoring to have progressed from his youth. See November 2013 statement. January 2017 private treatment records discussed the Veteran’s obesity and his physician noted that “[w]eight and its relationship to sleep apnea was discussed in detail.” The Veteran testified that there were constant complaints from roommates during service that his snoring was too loud. They would wake up to complain to him and it got to a point that they told him to cover his face or turn to the side so he would not snore as much. As the situation progressed, he was told by a sergeant that there were complaints about his snoring. He was tired all the time and could not concentrate. His sergeant also told him that he would be choking in his sleep. See September 2018 Board hearing. The Veteran reported that he had a sleep study done “just after 1997” when he got hired through the California Highway Patrol as a dispatcher because there were reports that he was snoring with his eyes open and that he had difficulty grasping information. He went to see his family doctor about the condition, who wrote a note saying that he should be on regular duty hours. Id. An acquaintance who met the Veteran in 1986 or 1987 reported that she would hear loud snoring and a choking sound from the Veteran while he was sleeping during the time he stayed at her house while in the process of leaving the military. See September 2018 statement. A June 2020 VA examiner diagnosed obstructive sleep apnea and opined it was less likely than not that the Veteran’s obstructive sleep apnea was related to service. The examiner noted that the sleep study was done 15 years post-service and that he weighed 275 pounds (lbs.) at the time, with a body mass index (BMI) of 38, which is considered obese. The examiner discussed that risk factors for obstructive sleep apnea include advancing age and obesity. While sleep apnea takes time to develop, the examiner stated that the 15-year gap from separation to the time of the sleep study was a significant period of time and would be considered ample time for sleep apnea to develop. The June 2020 VA examiner discussed that the Veteran lost weight during service, and at the time of separation weighed 181 lbs., which is not considered obese. In 1992, he was at 203 lbs., and so was already gaining weight post-service. His weight significantly increased by the time of his 2002 sleep study. The examiner discussed that medical literature documented that a 10 percent increase in weight is associated with a six-fold increase in risk of obstructive sleep apnea; the examiner noted that the Veteran demonstrated a 52 percent increase in weight, thus his development of obstructive sleep apnea was likely significantly influenced by his significant weight gain and likely had its onset post-service due to the weight gain. Id. The June 2020 VA examiner also discussed the that the Veteran’s mother reported snoring in childhood and thus her statement was not considered evidence of a relation to service. The examiner also discussed the letter from the acquaintance who witnessed snoring and choking during service. The examiner noted that the reported symptoms were not considered specific for obstructive sleep apnea because such symptoms can also occur in individuals without obstructive sleep apnea and thus the evidence had significant limitations. The examiner opined that after reviewing the evidence collectively, there was insufficient evidence to support onset of obstructive sleep apnea during service and that the evidence strongly supports onset of obstructive sleep apnea post-service contributed largely by the Veteran’s significant weight gain and development of obesity post-service. Id. The Board finds that the June 2020 VA examiner’s opinion is adequate for appellate review. The examiner relied on examination of the Veteran and a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran’s obstructive sleep apnea and lay statements of reported history. Although the June 2020 VA examiner at first appears to improperly differentiate objective evidence from subjective evidence, the opinion clearly considers the subjective lay evidence and relies on the totality of evidence in forming his opinion. There is no evidence that the examiner’s final opinion improperly discounted lay statements; instead, the examiner found that there were “significant limitations,” discussed those limitations as not providing evidence of a temporal relationship because such symptoms are not necessarily symptoms of obstructive sleep apnea, and weighed the evidence in his medical opinion. Indeed, it appears most of the examiner’s opinion relies on the Veteran’s weight gain after service, which is weighed against the lay statements about possible symptoms in service. Thus, the examiner did not improperly exclude consideration of lay statements merely because they are not medical evidence. Additionally, while the June 2020 VA examiner did not specifically discuss the Veteran’s own report of snoring and choking during service, as requested by the Board in its March 2020 remand directive, the examiner discussed the same symptoms as reported by the acquaintance. Thus, there has been substantial compliance with the remand directive, as the most relevant aspect of the Veteran’s report is the possible symptoms, rather than who the report originated from. Finally, the Board notes that the Veteran’s entrance medical examination states that he weighed 187 lbs., as discussed by the June 2020 VA examiner, but there is also the number “215” circled above the notation of the Veteran’s weight. See July 1984 service treatment records (STRs). The Board finds that clarification from the VA examiner is not necessary because the examiner discussed that the Veteran lost weight in service, and if his weight was 215 lbs. instead of 187 lbs. at entrance, the examiner’s finding that the Veteran lost weight is not affected. Moreover, there is another note that the Veteran weighed 189 lbs. in September 1984 on the entrance examination, which tends to show that the Veteran’s weight was 187 lbs. at entrance two months earlier. Thus, the preponderance of the evidence reflects that the Veteran’s weight was 187 lbs. at entrance, as discussed by the June 2020 VA examiner. Because the June 2020 VA opinion is adequate for appellate review, the Board assigns it significant probative weight. It appears that the Veteran’s acquaintance opined that the Veteran’s back and knee disabilities were related to service, but to the extent that she opined that his sleep apnea was most likely from the duties he performed daily in the military, see September 2018 statement, the acquaintance is not competent to opine about the cause of the Veteran’s disability because such causation is a complex medical question and there is no evidence she is a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a result, any medical opinion by the acquaintance regarding causation is given no probative weight. The evidence of record appears to support the June 2020 VA examiner’s opinion. Specifically, the January 2017 private treatment record indicates that the Veteran’s physician also believed that the Veteran’s sleep apnea was related to his weight. As discussed by the June 2020 VA examiner, records reflect that the Veteran’s weight gain began after service. Additionally, the Veteran’s mother reported that the Veteran snored prior to service, which tends to reflect that the snoring during service was not evidence of incurrence, as discussed by the June 2020 VA examiner. The examiner’s opinion significantly outweighs the reports of snoring and choking during service, including by the Veteran and the acquaintance, because those symptoms were discussed and considered by the examiner when he rendered his opinion. To the extent that the Veteran’s testimony that he had a sleep study done “just after 1997” could be asserted to show that he had obstructive sleep apnea diagnosed prior to 2002, the evidence is given no probative weight because he did not provide a more specific date; indeed, 2002 could be described as “just after 1997” and he may very well have been thinking of the 2002 sleep study. It is speculation to try to determine the date the Veteran was referencing during his testimony. Thus, the preponderance of the evidence reflects that the Veteran was first diagnosed with sleep apnea in 2002, as discussed by the June 2020 VA examiner. There is no probative medical opinion of record regarding the cause of the Veteran’s sleep apnea that contradicts the opinion by the June 2020 VA examiner and the opinion significantly outweighs the lay reports of record. Thus, the preponderance of the evidence reflects that the Veteran’s obstructive sleep apnea was neither incurred in nor related to service. As a result, service connection for obstructive sleep apnea is not warranted and the matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability. As discussed in the last Board remand, the Veteran’s STRs reflect an early complaint of back pain, see October 1984 STRs, and he testified that at that time he was training on a zip line that made his back “pop.” He also testified that he had back pain throughout service due to the duties required for supply specialists, to include pulling, climbing, and dragging items. See September 2018 Board hearing. The Veteran reported that he was treated for his back from 1987 to 1996 in Mexico and was diagnosed with herniated discs in his lower back at that time. See April 2020 statement. His report is corroborated by January 1994 VA treatment records that reflect the Veteran went to a private doctor who told him he had two ruptured discs. July 1994 VA imaging treatment records reflect mild degenerative changes with mild disc bulging. During a March 2014 VA examination, he reported that his back pain continued after service. A June 2020 VA examiner diagnosed degenerative joint disease and lumbosacral strain and opined it was less likely than not that these disabilities are related to service. The examiner stated that there was no nexus to show that the Veteran’s back disabilities were caused by his brief military service, especially in light of the fact that it was some 20 years later that the Veteran presented for treatment. The examiner also noted that the Veteran’s treating physician discussed that his lumbar spine issue was caused by his significant obesity. This opinion is inadequate because it did not consider the Veteran’s report that he had back pain continuing since service and that he sought treatment in the years immediately following service. Moreover, the Board is unable to locate an opinion in private treatment records that links the Veteran’s back disability to obesity (instead, it appears the physician discussed only the Veteran’s knees). As a result, remand for a new medical opinion is necessary. 2. Entitlement to service connection for a bilateral knee disability. The Veteran reported that he was treated for his knees from 1987 to 1996 in Mexico. See April 2020 statement. As noted above, private treatment records reflect that his treating physician believed his knee pain was most likely related to his obesity. See September 2013 private treatment records. He testified that he could only recall knee issues when he was in the military. See September 2018 Board hearing. An acquaintance also reported the Veteran complaining about his knees while he was in the process of leaving the military. See September 2018 statement. During a June 2020 VA examination, the Veteran asserted that his knee pain started during boot camp. The June 2020 VA examiner diagnosed bilateral patellofemoral pain syndrome and opined it was less likely than not related to service. Similar to the opinion regarding the Veteran’s back, the examiner relied on the absence of medical records immediately after service and did not discuss the lay reports regarding knee pain in service and treatment in the years thereafter. As a result, the opinion is inadequate and remand for a new opinion is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from March 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For the Veteran’s lumbosacral strain and degenerative joint disease, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s report of pain in service, corroborated by an acquaintance, and the report that he sought private treatment in the years after service, corroborated by 1994 VA treatment records. 3. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any bilateral knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For the Veteran’s bilateral patellofemoral pain syndrome, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s report of pain in service, corroborated by an acquaintance, the report that he sought private treatment in the years after service, and the September 2013 private treatment opinion that the Veteran’s knee pain is most likely related to his obesity. (continued on next page) 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.