Citation Nr: 21024677 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-28 216 DATE: April 23, 2021 ORDER Entitlement to service connection for a left hip disorder, to include as secondary to service connected disorders is denied. Entitlement to service connection for sleep apnea, to include as secondary to service connected disorders is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not support a finding that the Veteran’s left hip disorder is proximately related to her service connected disorders, or related to an injury, event, or illness in-service. X-ray findings diagnosed no evidence of arthritis. 2. The preponderance of the evidence does not support a finding that the Veteran’s sleep apnea disorder is proximately related to her service connected disorders, or to an injury, event, or illness in-service CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disorder are not met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty service from August 1984 to June 1992. She is service connected, in pertinent part, for varicose veins of the left lower extremity, left foot arthritis, residuals of a partial amputation of the second toe of the left foot, low back pathology, and arthritis of the left knee. The record reveals that there is also an ongoing appeal concerning the assignment of several increased ratings. An extension request concerning those issues has been entered, and they are not otherwise ready for appellate review at this time. The extension request does not pertain to the issues considered herein. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a left hip disorder The Veteran contends that her left hip disorder is proximately related to her service connected disorders. Service treatment records do not reveal any complaints, diagnosis, or treatments for a left hip disorder. A VA examination in August 1992 was also negative for any pertinent findings. November 2010 VA outpatient treatment records reveal that the Veteran reported left hip pain for the past two to three months. The Veteran reported that her hip pain began while employed at the National Archives. The Veteran noted that her hip pain is related to her job duties which regularly require her to climb and descend a ladder. In a March 2012 VA outpatient orthopedic examination, radiological findings reveal that the Veteran’s left hip is normal. In a March 2016 VA examination, the examiner diagnosed the Veteran with trochanteric pain syndrome and a left hip strain. The examiner opined that it is less likely than not that the Veteran’s left hip disorder is proximately related to her amputation through middle phalanx of the left second toe. The examiner explained that the Veteran has current documented degenerative disc disease of the lumbosacral spine which is more likely related to her lower extremity radiculopathy. In a March 2018 VA hip examination, the examiner diagnosed the Veteran a negative for any left hip disorders. In a May 2020 VA addendum opinion, the examiner determined that the Veteran’s reported hip disorder is less likely than not caused or aggravated by her service connected disorders. The examiner noted that the March 2016 VA exam and medical records prior to this date are silent for a history suggesting the Veteran’s resolved left hip disorder was caused or aggravated by any of her service connected disabilities. The examiner explained that at the Veteran’s 2018 examination, the Veteran was diagnosed as negative for any left hip disorders. The examiner noted that the Veteran’s reporting of her prior left hip disorder resolved with no residuals and was not aggravated by her service connected disorders. The examiner also explained that a hip strain or trochanteric bursitis commonly results from acute injury or overuse and not from another disorder. The examiner noted that the Veteran’s available medical records as well as the history from the Veteran suggest that overuse of the left hip was in-fact the cause. The examiner explained that there was a gradual onset and then resolution of the Veteran’s left hip disorder over time without triggering factors related to her service connected disorders. To summarize, the Veteran’s STRs reveal no complaints, diagnosis, or treatments for a left hip disorder in-service. Furthermore, there is no indication of any complaints or treatments for any left hip disorder for many years post-service. See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). This premise is further evidenced by the fact that the Veteran did not file a compensation claim for her service-related left hip disorder until years after discharge. The foregoing summary of the treatment record reveals no possibility for service connection for a left hip disorder on a direct basis or secondary basis. Although the Veteran contends that her left hip disorder is related to her time in-service, there is no in-service treatment for left hip pain, or for many years after discharge. Moreover, the Veteran did not report left hip during various VA outpatient appointments post-service. In-fact, the Veteran first reported left hip pain in a November 2010 VA outpatient treatment examination. In that examination, the Veteran reported left hip pain for the past two to three months. The Veteran also reported that her left hip pain began while employed at the National Archives. The Veteran noted that her left hip pain in related to her job duties which regularly require her to climb and descend a ladder. This reporting by the Veteran contradicts the contention that her left hip disorder began in-service. Moreover, in a 2018 hip examination, the Veteran was diagnosed as negative for any left hip disorder. Furthermore, the Board acknowledges the most recent May 2020 VA examiner opinion. The examiner explained that at the Veteran’s 2018 examination, the Veteran was diagnosed as negative for any left hip disorders. The examiner also noted that the Veteran’s reporting of her prior left hip disorder resolved with no residuals and was not aggravated by her service connected disorders. The examiner also explained that a hip strain or trochanteric bursitis commonly results from acute injury or overuse and not from another disorder. The examiner noted that the Veteran’s available medical records as well as the history from the Veteran suggest that overuse of the left hip was in-fact the cause, with the gradual onset and then resolution over time without triggering factors related to her service connected disorders. As the claims file lacks evidence of a left hip disorder in-service, or proximately related to the Veteran’s service connected disorders, the Board finds that the evidence of the record indicates that the Veteran’s left hip disorder is less likely than not related to her service connected disorders, or her time in-service. As a pathology for a left hip disorder has not been shown to proximately be related to the Veteran’s service connected disorders, or her time in-service, the Board finds that the clinical evidence does not support the Veteran’s contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3. 2. Entitlement to service connection for sleep apnea The Veteran contends that the onset of her sleep apnea disorder is proximately related to her obesity resulting from her service connected disorders. Service treatment records do not reveal any complaints, diagnosis, or treatments for sleep apnea disorder. Similarly, a VA examination conducted in August 1992 is likewise negative for pertinent complaints or findings. March 2010 VA outpatient treatment records reveal that the Veteran reported to the examiner that she was feeling exhausted every morning. The Veteran also reported snoring. The examiner prescribed a sleep study. In an August 2010 VA sleep study, the examiner diagnosed the Veteran as negative for sleep apnea. In a May 2012 VA sleep study, the examiner diagnosed the Veteran with sleep apnea. Weight loss was prescribed. In a March 2018 VA sleep apnea examination, the examiner diagnosed the Veteran with obstructive sleep apnea. The examiner noted an onset date of 2012. The examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of her service connected disorder. The examiner also opined that the Veteran’s sleep apneas is less likely than not related to an event, injury, or illness in-service. The examiner explained that the Veteran reports the onset of sleep apnea symptoms in the 2000’s. The Veteran herself states that this is related to weight gain over the years. She reported her activity decreased while her eating did not change, thus causing her weight to multiply to over 200 pounds. The examiner noted that the Veteran’s initial 2010 sleep study diagnosed her as negative for sleep apnea. However, two years later in 2012, the Veteran sleep study was positive for sleep apnea, but only for a very mild degree of obstructive sleep apnea and that her weight was 230 lbs. The examiner noted that the Veteran’s weight reflects a body mass index of 36 which indicates obesity. The examiner explained that obesity is known to be the most common risk factor for the development of obstructive sleep apnea. The examiner also explained that the Veteran’s weight at the time of her separation from the military was much lower at 163 pounds. The examiner opined that there is no evidence that the Veteran’s sleep apnea is caused by or aggravated by any of the Veteran’s service connected disorders. He explained that although some conditions may result in a decrease in certain forms of physical activity, none of the Veteran’s service connected disorders preclude physical activity in general or affect her dietary intake. In a May 2020 VA addendum opinion, the examiner determined that the Veteran’s reported sleep apnea disorder is less likely than not caused or aggravated by her service connected disorders. After an extensive literature review was performed regarding the Veteran’s service connected disorders the examiner found in the negative for the Veteran’s obesity being caused by her service connected disorders. The examiner noted that the Veteran’s records are actually negative for evidence of a direct correlation for the onset of her obesity and the onset or worsening of any of her service connected disorders. Rather, the evidence indicates a very gradual onset of the Veteran’s obesity with fluctuation as commonly seen over time with obesity. The examiner noted that if the Veteran’s obesity was in fact due to or related to a specific disorder or combination of disorders, evidence would very likely be found upon reviewing the chart of her weight over time versus onset, treatment, and worsening of various service connected conditions. In this case, evidence of treatment for the Veteran’s service connected disorders as related to her obesity is not present in the record. Therefore, the examiner determined that it is less likely than not that the Veteran’s sleep apnea was caused or permanently aggravated beyond its natural progression by the Veteran’s service-connected disabilities. To summarize, the Veteran’s STRs reveal no complaints, diagnosis, or treatments for sleep apnea in-service. Furthermore, there is no indication of any complaints or treatments for any sleep apnea disorder for many years post-service. See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). This premise is further evidenced by the fact that the Veteran did not file a compensation claim for her service-related sleep apnea disorder until years after discharge. The foregoing summary of the treatment record reveals no possibility for service connection for a sleep apnea disorder on a direct or secondary basis. Although the Veteran contends, in part, that her sleep apnea disorder is related to her time in-service, there is no in-service treatment for sleep apnea problems, or for many years after discharge. Moreover, the Veteran did not report sleep apnea during various VA outpatient appoints post-service. Furthermore, the Board acknowledges the most recent May 2020 VA examiner opinion. After an extensive literature review was performed regarding the Veteran’s service connected disorders the examiner found in the negative for the Veteran’s obesity being caused by her service connected disorders. The examiner noted that the Veteran’s records are actually negative for evidence of a direct correlation for the onset of her obesity and the onset or worsening of any of her service connected disorders. The examiner explained that if the Veteran’s obesity was in fact due to or related to a specific disorder or combination of disorders, evidence would very likely be found upon reviewing the chart of her weight over time versus onset, treatment, and worsening of various service connected conditions. Moreover, the examiner noted that in the Veteran’s case, evidence of treatment for the Veteran’s service connected disorders as related to her obesity is not present in the record. Lastly, the examiner opined that the Veteran’s reported sleep apnea disorder is less likely than not caused or aggravated by her service connected disorders. As the claims file lacks evidence of a sleep apnea disorder in-service, or proximately related to the Veteran’s service connected disorders, the Board finds that the evidence of the record indicates that the Veteran’s sleep apnea disorder is less likely than not related to her service connected disorders, or time in-service. As a pathology for a sleep apnea disorder has not been shown to be proximately related to the Veteran’s service connected disorder, or her time in-service, the Board finds that the clinical evidence does not support the Veteran’s contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.