Citation Nr: 21024624 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-58 142 DATE: April 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected sinusitis, is denied. FINDING OF FACT OSA was not present in service and was not shown to be causally related to service or to be proximately due to or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA, to include as secondary to service-connected sinusitis, have not been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2007 to October 2007 and from May 2009 to June 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ). A transcript is associated with the record. In May 2020, the Board remanded this matter for additional development. Entitlement to service connection for OSA In written statements of record and during the October 2019 Board hearing, the Veteran has asserted that his claimed OSA was secondary to his service-connected sinusitis. He further noted that he had been told he snored in service and was diagnosed with OSA in 2012 while being treated for his service-connected sinusitis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Service treatment records do not show any complaints, findings, or diagnosis of OSA. Post-service VA and private treatment records dated from 2012 to the present reflected complaints of morning headaches, daytime fatigue, irregular sleep pattern, and hypersomnolence as well as findings of OSA and sleep-related breathing disorder. Evidence of record does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran’s claimed OSA and his active military service. It also does not show that OSA was proximately due to or aggravated by the Veteran’s service-connected sinusitis. In the May 2015 VA examination report and medical opinion, the examiner opined that the Veteran’s OSA was less likely than not due to his sinusitis, as sinusitis was not a cause of OSA. In his October 2017 substantive appeal, the Veteran indicated that many studies have shown a link between chronic sinusitis and OSA. He reported that he suffers from daily nasal congestion that worsens at night and that use of a CPAP machine helps him get a better night’s sleep with sinusitis. He then discussed a 2017 medical treatise article from Mayo Clinic that found that when sinuses are inflamed, airflow through the nasal passage is obstructed, and nasal congestion makes an individual more likely to develop OSA. During the October 2019 Board hearing, the Veteran indicated that he was a cardiovascular nurse at an acute care hospital. He testified that he had seen firsthand that people who arrived with respiratory issues had a need for sleep apnea devices. He asserted that sleep apnea causes harm to the body. In a November 2019 VA treatment note, a VA physician indicated that articles provided by the Veteran regarding sleep apnea and sinusitis were reviewed and an opinion could not be given on whether sleep apnea was caused by chronic sinusitis. In March 2020, the Veteran submitted additional medical treatise evidence regarding nasal involvement in OSA. It was noted that numerous studies have reported an association between nasal obstruction and OSA syndrome, but the precise nature of that relationship remains to be clarified. Another article detailed that nasal obstruction frequently has been associated with sleep-disordered breathing as a potential etiologic factor. In a June 2020 VA medical opinion, the examiner, a VA physician, noted his review of the evidence of record, including the medical treatise articles concerning the nasal obstruction link to OSA. Thereafter, the examiner opined that it was less likely than not that the Veteran’s OSA was incurred in or caused by the claimed in-service injury, event, or illness. In the cited rationale, the examiner highlighted that post deployment examination reports did not reveal any medical concerns, that there were no apparent events in service that caused OSA, and that the Veteran’s OSA diagnosis was made two years after service in June 2012. The examiner further opined that OSA was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected sinusitis and was less likely than not worsened beyond natural progression due to the service-connected sinusitis. In the cited rationale, the examiner noted that there were no apparent events in service that caused OSA, including sinusitis. The examiner explained that sinuses were cavities inside the facial bones of the skull and that inflammation in those closed spaces did not cause or worsen obstruction in the lumen of the upper airways. The examiner detailed that the prime cause of OSA was excess body mass index, leading to redundant soft tissues in the upper airways and leading to intermittent airway obstruction. The Board considers the above June 2020 VA medical opinion to be of great probative value in this appeal. The VA examiner provided a complete rationale for the stated opinions, supporting the opinions by utilizing his medical knowledge as well as citing to his review of evidence included in the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that the most persuasive medical evidence that specifically addresses the questions of whether the Veteran’s currently diagnosed OSA was incurred during service, etiologically related to service, or was secondary to service-connected sinusitis weighs against the claim. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Thus, there is no basis upon which to conclude that the Veteran’s present sleep disorder was causally related to service or was proximately due to or aggravated by any service-connected disability. 38 C.F.R. §§ 3.303, 3.310. The statements from the Veteran are competent evidence as to observable symptomatology, including fatigue and sleep disturbance. See Barr, 21 Vet. App. at 307. While the Veteran is a nurse, and therefore his statements that his OSA was secondary to his service-connected sinusitis may be competent evidence, they are outweighed by the more probative June 2020 VA medical opinion. Statements made out of self-interest affect the Veteran’s credibility. The Board assigns less probative value to the Veteran’s statements in conjunction with the claim than to findings made by objective medical professionals. Cartright v. Derwinski, 2 Vet. App. 24 (1991) (pecuniary interest may affect the credibility of a claimant’s testimony); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Board also finds that the June 2020 VA medical opinion that directly addressed the Veteran’s specific history and OSA (with consideration of medical treatise evidence) is more probative than the general medical treatise evidence cited by and submitted by the Veteran concerning nasal obstruction and OSA. See Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). (Continued on the next page)   Accordingly, the criteria to award entitlement to service connection for OSA on a direct or secondary basis have not been established, either through probative medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for OSA, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.