Citation Nr: 21023821 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-28 479 DATE: April 21, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against aggravation of the Veteran’s pre existing obstructive sleep apnea by active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from January to April 1980 and on active duty from October 2005 to September 2013. He served honorably in the U.S. Army. The Board thanks the Veteran for his service to our country. The Veteran testified before another Veterans Law Judge (VLJ) at a Board hearing in August 2017. A transcript of the hearing is of record. In March 2021, the Veteran was informed that the VLJ before whom his hearing was held was no longer with the Board and offered the opportunity to request a new hearing; he was advised that if he did not respond within 30 days of the letter, it would be assumed that he did not want another hearing. As the Veteran did not respond within the time period, the Board will proceed with adjudication. The issue of service connection for obstructive sleep apnea was previously before the Board in March 2019, when the Board denied the claim. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2020 Order, granting a March 2020 Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the March 2019 Board decision consistent with the terms of the Joint Motion and dismissed the appeal as to the remaining issues of service connection for atrial fibrillation and a compensable rating for hypertension. The Board remanded this case in June 2020 for additional development. The case has now returned to the Board for further appellate review. Entitlement to service connection for obstructive sleep apnea is denied. The Veteran contends that service connection for obstructive sleep apnea is warranted. The Board finds that service connection is not warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran does not contend and the record does not indicate that his obstructive sleep apnea is related to a disease or injury incurred or aggravated in the line of duty during his January to April 1980 period of active duty for training. Service treatment records are silent for any complaints, findings, treatment, or diagnosis of obstructive sleep apnea during this period and in a March 1980 examination report, all systems were noted as normal on clinical evaluation, no defects or diagnoses were noted, his PULHES profile consisted of all 1s, and he was categorized in the A physical category. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s obstructive sleep apnea preexisted his military service from October 2005 to September 2013. Specifically, following an overnight polysomnogram, in June 2001 a private provider noted an impression of mild obstructive sleep apnea. In an August 2005 sleep study report, the provider diagnosed moderate sleep apnea. The appellant established “veteran” status based on this period of active duty service. Veteran status is not the only requirement for the presumption of soundness to attach. Under 38 U.S.C. § 1111, “every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” The Court clarified that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected.” See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Further, “[p]lainly, the statute requires that there be an examination prior to entry into service on which the claim is based.” Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. Id. In this case, the Veteran’s attorney before the Court contended that an October 2005 pre-deployment health assessment constituted an induction examination and, as obstructive sleep apnea was not noted in the assessment, the presumption of soundness attaches. The Board finds that he was not afforded an induction examination for his October 2005 to September 2013 period of service. There is no report of medical examination for the October 2005 to September 2013 period of service. With respect to an October 2005 pre-deployment health assessment, it cannot suffice as a substitute because rather than being “examined, accepted, and enrolled for service” (emphasis added), the principal purpose of the assessment was to “assess [the Veteran’s] state of health before possible deployment outside the United States in support of military operations and to assist military healthcare providers in identifying and providing present and future medical care to [the Veteran].” The Board also notes that, in contrast to the requirement set forth in Smith, the assessment was not conducted prior to entry into service but rather two days after his entry. Indeed, in the August 2017 hearing, the Veteran characterized an assessment on the second or third day into his orders as a “see if you were doing okay operation” in which he saw the doctor who reviewed his blood pressure and his vaccinations for perhaps two minutes and during which he was not asked any specific questions. Asked if the assessment was an actual examination, the Veteran testified, “[p]robably not, I wouldn’t say it would have been, no, because they didn’t look at us in detail, absolutely not.” As an entrance examination was not conducted for the period of service in question, and the pre-deployment assessment does not suffice as a substitute, the presumption of soundness cannot apply. An entrance examination is not required for a claimant to receive the presumption of aggravation for a claim based on a period of service. Hill v. McDonald, 28 Vet. App. 243, 246 (2016). Instead, a veteran need only submit evidence that helps establish that there is an increase in disability during such service. 38 U.S.C. § 1153. Section 1153 requires an increase in the severity of the preexisting disorder rather than the occurrence or recurrence of its symptoms. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of a temporary flare-up alone is not sufficient to establish an increase in disability. Id. The most competent and credible evidence of record illustrates that the Veteran’s obstructive sleep apnea preexisted service. As noted above, mild obstructive sleep apnea was noted in June 2001 and moderate sleep apnea was diagnosed in August 2005. There is no evidence against preexistence. Therefore, the Board must next consider whether the most competent and credible evidence of record establishes an increase in severity during the relevant period of service. In a February 2002 private note, following an overnight polysomnogram, the Veteran’s provider, a Dr. H., noted good clinical response to CPAP at approximately 11 cm of CPAP pressure. In a January 2003 letter, a provider relayed that he had mild obstructive sleep apnea and that he had elected treatment with weight loss. However, in an April 2004 service initial medical review, the physician noted in the physician’s review notes, “[obstructive] sleep apnea – on CPAP.” In an August 2005 sleep study report, following an overnight polysomnogram, Dr. H. noted that the Veteran used CPAP at best observed pressure of 10. In a March 2006 letter, Dr. H. relayed that the Veteran had been under care for obstructive sleep apnea since 2002 and that he was currently on treatment with CPAP. In a treatment note from the same day, that provider noted that he had been using CPAP since last seen and, while he occasionally skipped it, he generally used it most of the time and that he felt better. Dr. H. noted a plan to continue with CPAP. In a June 2011 private note, the Veteran complained of sleep apnea and requested to see Dr. H. again. In a November 2011 follow-up note, he relayed wanting something to help with sleep; the provider rendered an assessment of insomnia. In a May 2012 note, Dr. H. noted that the Veteran had been seen 5 or 6 years before for sleep apnea and was supposed to be using his CPAP machine at 10 cm but rarely used it. Dr. H. noted the Veteran’s report that he had used it a couple of weeks ago for a week and did feel better when he used it but had difficulty tolerating. In the impression and plan, Dr. H. noted his significant sleep apnea history and that they had discussed retesting and trying him on a BiPAP but that he would try his old machine first. Dr. H. noted to set the CPAP on 10 with a ramp and that if that did not work, that he would be retested and would try a BiPAP. In a July 2012 note, Dr. H. noted that since last seen, the Veteran was using his old CPAP machine and was slowly getting used to it. Dr. H. noted that he was doing fair with CPAP. In an April 2014 VA examination report, the Veteran reported that he began having symptoms of sleep apnea of snoring and fatigue around 1999 and had a sleep apnea test in June 2001. The examiner noted that the Veteran was then being treated with a BiPAP machine. In a July 2014 opinion, a clinician concluded that, based on the available information, there was no evidence that the Veteran’s pre-existing obstructive sleep apnea diagnosed in February 2002 was aggravated beyond natural progression during service. Actually, the clinician noted, there are multiple notes of inconsistent use of the CPAP machine and his reports that he felt better when using it. This medical opinion was deemed inadequate in the Joint Motion for Remand and therefore will be considered to have no probative value. In an April 2015 note, Dr. H. noted that the Veteran was on BiPAP at 12 with inspiration and seemed to be tolerating well. He reported that he was using the machine every night with no difficulty and did feel better. In a December 2015 letter, Dr. H. stated that he was on BiPAP and doing well and needed to continue BiPAP treatment. At the August 2017 hearing, the Veteran testified that his sleep apnea worsened in service. He testified that he got another sleep study in service and had to adjust the CPAP settings a couple of times in service through Dr. H. He testified that he did not recall when he was first prescribed the CPAP. He confirmed that he had provided VA with all the medical evidence from Dr. H. In a July 2017 VA examination report, the Veteran reported that he wore his CPAP mask about half the time and that when able to wear it he felt rested the following day and able to think more clearly, but that he felt tired and fatigued the following day when unable to wear it. He reported that he had symptoms of fatigue that developed gradually over the past several years. In a July 2020 VA opinion, the clinician stated that obstructive sleep apnea was clearly documented prior to service in the June 2001 sleep study, February 2002 CPAP titration study, and August 2005 sleep study noting moderate obstructive sleep apnea. The clinician concluded that the Veteran had a baseline in the mild to moderate range with CPAP pressure of 10 prescribed. The clinician concluded that during the period of service, his obstructive sleep apnea remained stable in the mild to moderate range. The clinician based this conclusion on record’s silence as to the disorder until 2011 and the notations in 2011 and 2012 that he rarely used his CPAP treatment for the disorder. The clinician noted that he restarted use of his old machine in 2012 at 10 cm pressure, which was actually slightly lower pressure than what he was prescribed pre-service, indicating clinical stability. The clinician stated that the limited use of CPAP treatment during service and the reduction in CPAP pressure by 1 point during service is medical evidence of stability of the disorder. The clinician stated that no medical evidence of worsening during the service period could be identified. As this opinion is based on review of the Veteran’s claims file and is supported by an adequate rationale, the Board places great probative value on the clinician’s conclusions. In an October 2020 VA examination report, the Veteran reported that he felt that his sleep apnea has been the same. He reported that he had a sleep study in 2002 with titration of CPAP and another in 2005 that showed moderate obstructive sleep apnea. He reported that he could not tolerate wearing the CPAP so he did not wear it; however, while on active duty, he found that he was more tired and started to wear the CPAP again due to the long days. He reported that in 2011 he was switched from the CPAP to BiPAP to get better control due to worsening symptoms. He reported that he wears the CPAP about 50 percent of the time. The examiner concluded that the disorder was less likely than not incurred in or caused by service as it predated that period of service. The examiner also concluded that the disorder was aggravated beyond its natural progression during service, but that the degree of aggravation from baseline could not be determined without resorting to mere speculation. The examiner based this conclusion on the Veteran’s report that he did not wear the CPAP prior to active service and that he was able to function well, but that he found that daytime sleepiness was worsened and he had difficulty completing tasks after his activation. The examiner also noted that he was subsequently changed to a BiPAP machine, which he found more effective when wearing it. The examiner concluded that if he had not been activated, he more likely than not would not have started his CPAP or subsequent BiPAP. The Board concludes that, to the extent the Veteran reported that he did not use his CPAP prior to active duty service, the statement is not credible as it is inconsistent with the contemporaneous medical evidence. The April 2004 service initial medical review noted that the Veteran was on CPAP for his obstructive sleep apnea. In the March 2006 treatment note, Dr. H. stated that he had been using his CPAP since his last visit and, while he occasionally skipped it, he generally used it most of the time and that he felt better. The Board concludes that, as the most recent prior note from Dr. H. was from August 2005 and the Veteran testified that all treatment records had been provided to VA, he had been using his CPAP machine most of the time since prior to active duty service. Further, the clinician appears to base the rationale in part on the Veteran’s report that he was switched from a CPAP machine to a BiPAP machine in 2011; however, this is also inconsistent with the July 2012 note in which Dr. H. noted that he was using his old CPAP machine and doing fair with it. As the 2020 examiner’s conclusion is based on this non-credible evidence, it is afforded no probative value. Accordingly, the preponderance of the evidence is against finding that the Veteran’s pre-existing obstructive sleep apnea increased in severity during active duty service. The medical evidence of record shows that he was using his CPAP machine most of the time prior to service and after entering active duty service, that he complained of sleep apnea again in June 2011, and that he was restarted on and responded fairly to his CPAP machine at 10 cm, which is what he had been prescribed 5 or 6 years earlier. There is no credible evidence that he was treated with a BiPAP machine during service. While there is evidence of his symptoms of fatigue recurring when he discontinued treatment, there is no evidence of an increase in the underlying obstructive sleep apnea. Further, the VA clinician concluded in the probative July 2020 opinion that the disorder was stable during that period of service and that there was no medical evidence of an increase in severity. As the most competent and credible evidence of record does not show an increase in the severity of obstructive sleep apnea during service, the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. See 38 C.F.R. § 3.306(b). Therefore, entitlement to service connection must be denied. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application here. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vashaw, Monica 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.