Citation Nr: 21026790 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-13 002 DATE: May 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD), is denied. Entitlement to service connection for a right ankle disability, to include degenerative joint disease (DJD), i.e., arthritis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's OSA is caused or aggravated by his service-connected IBS with GERD or that it is otherwise related or attributable to his service. 2. The preponderance of the evidence is likewise against finding that his right ankle disability, including DJD, is related or attributable to his service. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for OSA, including secondary to the service-connected IBS with GERD. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria also are not met for entitlement to service connection for a right ankle disability, including DJD (arthritis). 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to March 1987 and from January 1991 to May 1991. This appeal to the Board of Veterans' Appeals (Board) is from March 2013 (right ankle disability) and October 2016 (OSA) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at hearing in November 2017 before a Veterans Law Judge of the Board. The transcript is of record. The Board since has twice remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration initially in July 2018 and more recently in February 2021. Service Connection 1. Entitlement to service connection for OSA, including as secondary to IBS with GERD The primary basis of this claim is that the Veteran's OSA should be determined service connected because it is secondary to, meaning caused or aggravated by, a service-connected disability, namely, his IBS with GERD. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Id. See also El-Amin v. Shinseki, 26 Vet. App. 136 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran was suspected of having OSA since at least June 2013 and eventually received this diagnosis in December 2017, so there is no disputing he has this claimed condition. Unfortunately, however, the record does not also reflect the required attribution of his OSA his military service necessary to warrant the granting of service connection including by way of his service-connected IBS with GERD. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Notably, there are no treatment records or formal medical opinions on record establishing any correlation between the Veteran's OSA and his IBS with GERD. The only medical opinion discussing this posited correlation is the March 2021 VA medical opinion obtained on remand. And, after reviewing the record, including the Veteran's lay statements, the opining examiner noted no correlation between these conditions. Further, she cited several medical articles finding that IBS and GERD are not known risk factors for causing or aggravating OSA. Known aggravating factors to OSA include aging, male gender, obesity, and upper airway abnormalities, and risk factors causing OSA are obesity, smoking, and male gender. As such, this examiner concluded the Veteran's OSA was less likely than not caused or aggravated by his service-connected IBS with GERD. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Including a basis for an opinion goes to the weight or credibility of the evidence in adjudication. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors in assessing an opinion's probative value are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the VA medical opinion against the claim was provided by a clinician having the necessary education, training, and expertise to comment on the origins of the Veteran's OSA. Additionally, the opinion was based on a review of his relevant records and is accompanied by sufficient explanation (rationale) as to why his OSA is less likely than not caused or aggravated by his IBS with GERD. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (explaining that most of the probative value of a medical opinion comes from discussion of its underlying reasoning). The Board finds nothing on record to rebut this medical opinion. There are no treatment notes or other notes suggesting a correlation between the Veteran's OSA and his service-connected IBS with GERD. As such, the only evidence on record suggesting a causal relationship is his November 2017 lay statement. However, OSA is not the type of simple condition that would permit him to determine when he first had it, including in terms of whether it was during his time in the military and whether his IBS with GERD causes or aggravates it. Instead, OSA is complex, thus, requiring supporting medical evidence to link it to his service, including by way of his IBS with GERD. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent, and, as explained, OSA is not that type of disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); 38 C.F.R. § 3.159(a)(1) and (2). The Veteran's OSA also has not been otherwise attributed to his service either directly or presumptively. Indeed, he does not allege, and the evidence does not otherwise show or even suggest, that his OSA onset during his service or that it is directly attributable to his service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); see also Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Moreover, OSA is not a condition that may be presumptively related to service even if it manifested initially within a year of the Veteran's discharge from service, which, in any event, there is no credible indication it did. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Still further, it is not suggested or shown the Veteran's OSA is an undiagnosed (as opposed to diagnosed) illness or chronic unexplained multi-symptom illness of the type contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 for a Persian Gulf War Veteran. The Veteran's spouse submitted a June 2012 statement attesting to the Veteran's snoring and breathing problems for 10 years. But, even if true, that dates his symptoms only back to 2002 or thereabouts, which still was more than a decade after conclusion of his service in 1991. Consider, as well, that the March 2019 VA examiner found no documentary evidence of in-service onset of the OSA and no correlation to the Veteran's service. The Veteran and his wife do not have this capability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board finds that the preponderance of the evidence is against this claim for service connection for OSA on either a direct, presumptive, or secondary basis. The Board has considered the benefit-of-the-doubt doctrine; however, there is not an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, this doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right ankle disability, including DJD (i.e., arthritis) As previously discussed, direct service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Unlike OSA, DJD is a chronic condition that may be awarded service connection on a presumptive basis if it manifested to a compensable (at least 10 percent) degree within 1 year of service separation or during service and then again at a later date, if not attributable to an intervening ("intercurrent") cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; see also Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Further, evidence of continuity of symptomatology may invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 49697 (1997)); 38 C.F.R. § 3.303(b). In deciding a claim, the Board must analyze the competency, credibility, and probative value of all evidence of record, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed the evidence of record including the additional evidence obtained since twice remanding this claim to further develop it. Unfortunately, however, the Board finds that the preponderance of the evidence is against this claim, so it must be denied. The Veteran received a diagnosis of DJD (arthritis) in both ankles, so left and right, in July 2013, and he already has established his entitlement to service connection for his left ankle disability although characterized as a strain rather than DJD, per se. That initial indication of DJD in his other (i.e., right) ankle was more than 20 years following conclusion of his military service. And, while it is true that initial, post-service diagnosis of a condition, as here, is not a preclusion to granting service connection (see 38 C.F.R. § 3.303(d)), there is not the required attribution of his right ankle arthritis to his service or probative indication it incepted during his service, or manifested to a compensable degree within a year of his discharge, and has persisted since. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran's STRs do not reflect any right ankle injury, right ankle complaints, or consequent right ankle disability during his service. His active duty service ended in May 1991, and the first mention of a right ankle injury on record is his June 2012 statement that he had injured his left ankle in service, and that his right ankle was "aggravated" by marching and repetitive movement. But his STRs do not tend to support that assertion, as the first mention of impairment referable to his right ankle is not until many years later, long after conclusion of his service. That said, it is continuity of symptoms, rather than continuity of treatment, that is the essence of 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 496 (1997). But, still, the absence of any objective indication of right ankle impairment, especially for so long after the Veteran's service, nonetheless is factor in determining whether service connection is warranted. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence showing continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the now claimed disorder). During his March 2013 VA ankle examination, the Veteran reported bilateral (so left and right) ankle pain beginning sometime in 1995, but that still was starting some 4 years after conclusion of his military service. This report was reproduced, word for word including a notable misspelling of the word "mechanic" as his medical history in the subsequent January 2015 and October 2016 examination reports. During his hearing, he explained that his symptoms actually began with an injury during basic training in 1986. However, at his March 2013 examination, he was asked when his ankle symptoms became serious enough to cause problems with physical activity, and he answered they were enhanced in 1995 to the point they interfered with running and climbing. Unfortunately, this statement is not corroborated by the Veteran's other statements on record. His provider notes, including his June 2012 filing, his STRs reflecting treatment for a left ankle injury in December 1986, which is the basis, in part, of his service-connected left ankle disability and his post-service treatment records do not reflect statements of symptom onset in 1986. As noted in prior VA examinations, he reported his symptoms began in 1991 to treating providers in July 2013. Still further, the medical opinion obtained on remand is also against the claim. The March 2021 examiner acknowledged the earlier finding of bilateral ankle DJD but did not find any current symptoms or diagnosis or evidence of treatment for ankle injury during or immediately after service. For this reason, the examiner ultimately determined there is not the required correlation (nexus) between the Veteran's right ankle condition and his service. This is the only medical opinion of record on this determinative issue of causation, and it is unrefuted. As such, there is no competent and credible medical evidence attributing the Veteran's right ankle DJD to his service. Further, DJD is not the type of simple condition that would permit him to determine when it first arose, including in terms of whether it was during his time in the military. Instead, DJD is a complex diagnosis, requiring diagnostic imaging to diagnose and, thus, requiring supporting medical evidence to link it to his service. As such, the Veteran's statements that his service caused his right ankle DJD is the only evidence on record attributing this disability to his service. And, unfortunately, although he is competent to report his symptoms experienced firsthand (such as pain), he lacks the necessary medical training or expertise to render a probative opinion regarding the etiology of his claimed right ankle DJD. Layno v. Brown, 6 Vet. App. 465 (1994). See also 38 C.F.R. § 3.159(a)(1) and (2). For these reasons and bases, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for right ankle DJD. His appeal consequently must be denied. There is no reasonable doubt to be resolved in his favor concerning this posited correlation. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, Associate 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.