Citation Nr: 21030063 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-05 271 DATE: May 17, 2021 ORDER Entitlement to service connection for a recurrent sleep disorder, to include obstructive sleep apnea, is denied. FINDING OF FACT The preponderance of the evidence is against finding that any current sleep disorder, including the Veteran's diagnosed obstructive sleep apnea, began during active duty service or is otherwise etiologically linked to an in-service disease, injury, or event. CONCLUSION OF LAW The criteria for entitlement to service connection for a recurrent sleep disorder, to include obstructive sleep apnea, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further evidentiary development in September 2018, and again in August 2020. The prior Board decisions remanding this matter were issued by an Acting Veterans Law Judge and a Veterans Law Judge (VLJ) other than the undersigned. The case has now returned to the Board and been reassigned to the undersigned VLJ for further appellate review. For the sake of clarification and correction, the Board notes that the Board's August 2020 remand directives included an erroneous request for a VA examiner to address a query concerning whether the Veteran has a sleep disorder "caused or aggravated by the Veteran's service-connected fibromyalgia." The Board regrets that this erroneous query resulted in some confusion in the development of the needed VA medical opinion. To correct this confusion, the Board here clarifies: the Veteran does not have any currently recognized service-connected disabilities, the evidence of record does not indicate that he has fibromyalgia, and the Veteran has not contended that any fibromyalgia is pertinent to this claim on appeal. 1. Entitlement to service connection for a recurrent sleep disorder, to include obstructive sleep apnea, is denied. The Veteran claims entitlement to service connection for a recurrent sleep disorder, with the medical evidence of record showing that he is diagnosed with obstructive sleep apnea. 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. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 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). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. A December 2020 VA Sleep Apnea Disability Benefits Questionnaire (DBQ), informed by a tele-health examination of the Veteran plus review of the claims-file, confirms that the Veteran has a medical diagnosis of obstructive sleep apnea established in 2001; this is consistent with the contents of other medical evidence of record, including contemporaneous April 2001 documentation. The medical doctor who completed this December 2020 Sleep Apnea DBQ presented an accompanying medical opinion that finds that the sleep apnea disability "is less likely than not (less than 50 percent probability) incurred in or caused by the military service...." The examiner discusses that "based on record review and today's examination, veteran's obstructive sleep apnea dates to 2001 by sleep study examination years after active military service." The VA examiner cites that "service treatment record[s] are silent for any sign[s] and symptoms that that is pathognomonic for obstructive sleep apnea. Based on record review, including veteran's lay statement there is no clinical and objective evidence that support[s] a direct nexus to active service." The VA examiner directly acknowledges an "August 2005 treatment note [referring to] nasal breathing impairment while in the army, and that the veteran had a 'rhinological allergic condition since his army duties.'" The VA examiner notes that the Veteran's past separate claim of entitlement to service connection for sinusitis has been adjudicated and denied by prior final VA adjudication. The December 2020 Sleep Apnea VA examiner later discusses that the Veteran's risk factors for developing obstructive sleep apnea are "non service connected allergic rhinitis, chronic sinusitis and being a male." The examiner notes that "Mayo Clinic medical literature support a direct nexus between the onset of obstructive sleep apnea with having chronic sinusitis and allergic rhinitis as risk factors," and "as per NIH National Library of Medicine ... rhinitis particularly allergic rhinitis has been shown to be associated with obstructive sleep apnea." The VA examiner finds that "there is sufficient medical evidence connecting veteran['s] history of chronic allergic rhino-sinusitis as contributing substantially to veteran['s] obstructive sleep apnea." As discussed below, the Veteran's chronic allergic rhino-sinusitis has been adjudicated by VA to be a non-service-connected disability, including in an October 2008 Board decision. The Veteran additionally underwent a VA psychiatric examination later in December 2020 to further inform the adjudication of the sleep apnea service connection claim on appeal. The December 2020 VA psychiatric examiner noted that "sleep apnea hypopnea ... is indeed a DSM-5 diagnosis." The VA psychiatric examiner provided a medical opinion and concluded that it is "less likely than not (less than 50 percent probability)" that the Veteran's claimed sleep disorder was "incurred in or caused by the claimed in-service injury, event, or illness." The opinion-provider discussed that the evidence "fails to show a link between Mild Obstructive Sleep Apnea and military service with discharge on 1971." The opinion-provider's rationale cited the significant passage of time between the Veteran's 1971 separation from service and his post-service diagnosis of sleep apnea. The Board notes that the opinion-provider's discussion of rationale refers to a "2012" date of onset of the sleep disorder, 41 years after separation from service, whereas the different examiner who prepared the earlier December 2020 Sleep Apnea DBQ acknowledged a diagnosis of sleep apnea from as early as "April 19, 2001," consistent with contemporaneous documentation of record. The Board has considered whether this discrepancy significantly interferes with the reasoning of the psychiatrist's rationale in the second December 2020 VA medical opinion. The Board finds that it does not; there is no suggestion in this case of any reason to believe that the difference between a 30-year post-service period prior to diagnosis versus a 41-year post-service period prior to diagnosis would affect the analysis. The Board understands the opinion's citation of facts as indicating that the period of decades following service weighed against finding a medical link between the post-service diagnosis and the Veteran's military service; there is no suggestion that this analysis would change depending upon whether the substantial gap was three decades or four in duration. Reading the December 2020 VA medical opinions together, the Board finds that they present competent probative evidence indicating that it is medically unlikely that the Veteran's obstructive sleep apnea is etiologically linked to his military service, because there is no sign of onset of the pathology during service or for many years following service, and because the medically identified risk factors likely contributing to the sleep apnea are non-service-connected entities. The December 2020 VA medical opinions weigh against the Veteran's claim. As there is no contrary medical opinion of record, the Board finds that the December 2020 VA medical opinions are persuasive. The Board finds that the evidentiary record does not otherwise present any basis for a grant of the claim on appeal in this case. The Veteran's service treatment records contain no indication of a sleep disorder during service, and his January 1971 separation examination report presents no suggestion of a sleep disorder. Service treatment records documenting an upper respiratory infection in March 1970 and a sore throat / pharyngitis in July 1970 and December 1970 do not suggest any chronic disability or an associated sleep disorder. Moreover, a late-December 1970 service treatment report specifically shows that the Veteran's pharyngitis had "resolved." This evidence presents no significant support for the claim of entitlement to service connection for sleep apnea. An October 1971 VA examination report, performed for purposes including assessing the Veteran's respiratory concerns at the time, shows that medical examination revealed no pertinent disability or abnormality. This evidence presents no support for the claim of entitlement to service connection for sleep apnea. An October 1986 private medical record discusses the Veteran's treated medical concerns in 1985 and 1986 with no suggestion of sleep disorder. This record notes "acute tonsil pharyngitis," with no suggestion of a chronic disability, nor any relationship to military service, nor any obstructive sleep apnea or sleep impairment concern. This evidence presents no significant support for the claim of entitlement to service connection for sleep apnea. The April 2001 private medical record documenting the Veteran's earliest indication of "obstructive sleep apnea" of record presents no indication that the pathology had onset or any other manner of etiological link to the Veteran's military service. This evidence presents no significant support for the claim of entitlement to service connection for sleep apnea. A January 2005 private medical record from a Dr. Badui discusses the Veteran's history of obstructive sleep apnea with treatment dating back to 2001, and does not indicate that the pathology is etiologically linked to the Veteran's military service. The report otherwise recommends medical treatment for "Allergic Rhino Sinusitis and probably for his Sleep Apnea condition." An August 2005 private medical record from the same Dr. Badui includes the note that the Veteran was "apparently treated on US ARMY because of nasal breathing impairment," and the doctor remarked that the Veteran was "having r[h]inological allergic condition since his Army duties." Dr. Badui's notes suggest that the Veteran's allergic rhino-sinusitis had onset during military service, including to the extent that the record memorializes the Veteran's account of symptoms in hindsight. The Board takes note of this because the above-discussed December 2020 VA medical opinion indicates that the allergic rhino-sinusitis has been a substantial contributing cause of the Veteran's obstructive sleep apnea. Ultimately, however, consideration of Dr. Badui's notes does not reveal a basis for a grant of service connection for obstructive sleep apnea in this case. First, Dr. Badui's notes do not indicate onset of obstructive sleep apnea during service. Secondly, the Veteran's allergic rhino-sinusitis is a distinct pathology for which the Veteran has repeatedly sought to establish service-connected status, leading to multiple prior VA adjudications determining that it is not a service-connected disability. Indeed, an October 2008 Board decision (the most recent final denial of the sinus disability service connection claim) considered and discussed Dr. Badui's record amongst other evidence and determined that service connection was not warranted for the disability. The Veteran has not thereafter repeated his previously articulated and adjudicated claims of entitlement to service connection for the sinus disability in connection with the claim on appeal, nor has he otherwise identified potentially new and material evidence on that matter in any attempt to reopen the past issue. Although the Veteran's current claim is not necessarily limited to the single specific diagnosis of obstructive sleep apnea, the Board does not find that the Veteran's claim on appeal seeking entitlement to service connection for a sleep disorder encompasses allergic rhino-sinusitis in this case. The significance of the Veteran's allergic rhino-sinusitis to this appeal is simply that it is a non-service-connected disability cited by a December 2020 VA medical opinion as a contributing factor to the development of the obstructive sleep apnea / sleep disorder disability on appeal. Entitlement to service connection cannot be established on the basis of an etiological link to a non-service-connected disability; this claim under such a theory of entitlement is barred as a matter of law. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran's lay assertions that his obstructive sleep apnea disability is due to his military service are not competent evidence. Laypersons are competent to provide opinions establishing the etiology of a disability in some instances. However, the matter of a nexus between the events of his military service (including in-service instances of a sore throat and upper respiratory infection) and a much later diagnosis of obstructive sleep apnea features complex medical questions beyond the scope of lay observation / common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not submitted or identified any competent medical evidence indicating that his obstructive sleep apnea or any sleep disorder is etiologically linked to his military service. Here, other than the Veteran's assertions, there is no indication of a relationship between a current sleep disorder and an in-service event, injury, or disease. No sleep disorder is suggested to have manifested during service in any service treatment records, nor is any sleep disorder shown for many years following service, nor has the post-service medical evidence indicated that a sleep disorder began during service. The Board has further reviewed the Veteran's medical records with attention to the possibility that such records may present an indication of an etiological link between the diagnosed obstructive sleep apnea and military service. Neither the Board's review of the evidence nor the Veteran's contentions in this case have identified any such indications in the medical evidence of record. The Board notes that the evidence of record indicates the earliest diagnosis of obstructive sleep apnea (the only diagnosed sleep disorder) in this case occurred 30 years following the Veteran's separation from service. This period of 30 years following the Veteran's separation from active duty service without evidence of any emergence of a sleep disorder is one factor that weighs against the Veteran's claim for service connection on a direct basis. See Maxson v. West, 12 Vet. App. 453, 459 (1999). The Board notes that the post-service medical evidence contains evidence that pertains to assessment of the Veteran's respiratory / airway complaints, making it notable that the Veteran's recorded respiratory concerns did not include signs suggestive of sleep apnea in reports such as the 1971 VA examination report (associated with a compensation claim for respiratory disability) and the 1986 private medical records (documenting treatment airway symptoms diagnosed as acute pharyngitis). See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012) (absence of evidence cannot be taken as substantive negative evidence without "a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact"). Even the medical records associated with the eventual diagnosis of sleep apnea do not indicate a history of sleep apnea symptoms or manifestations dating back to military service. There is otherwise no clinical evidence or medical opinion linking any sleep disorder to service. Neither the lay statements nor any evidence of record otherwise identify any significantly earlier onset of a sleep disorder nor any detail of service indicated to be causally responsible for the current sleep disorder. The Board is bound to apply the laws and regulations as they apply to the case, and the Board must rely upon the competent medical evidence to resolve questions of a medical nature. In this case, the Veteran's sleep disorder, diagnosed as obstructive sleep apnea, is not shown by medical evidence to have had onset during service or for many years following service. Because the competent medical evidence indicates that the Veteran's current sleep disorder is not etiologically linked to his service, the Board is unable to find that the criteria for an award of service connection are met in this case. The Board wishes that an outcome more favorable to the Veteran could have been reached. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a sleep disorder, diagnosed as obstructive sleep apnea. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the claim must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.