Citation Nr: 21030566 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-21 099A DATE: May 19, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to gastroesophageal reflux disease (GERD) or hypertension, is denied. REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to gout, is remanded. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran's obstructive sleep apnea is not shown to be proximately due to or aggravated by service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from December 1987 to May 1992, and in the U.S. Army from October 1994 to March 2000 including service in Southwest Asia. These matters come before the Board of Veteran's Appeals (Board) on appeal from November 2009 and August 2014 rating decisions by the Regional Office (RO). In August 2015, the Veteran testified at a Travel Board hearing. A transcript of the proceeding is associated with the claims file. In February 2021, the Veteran was notified that the Veterans Law Judge who conducted the hearing is no longer employed by the Board, and the Veteran was offered an opportunity for a new Board hearing and it was requested that he respond within 30 days. To date, no response was ever received. Therefore, these matters are ready for further appellate review. A May 2018 Board decision denied the Veteran's claims. A November 2019 order of the Court of Appeals for Veterans Claims (Court) granted a joint motion by the parties to vacate the Board decision, and to remand the claims to the Board. In April 2020, the Board remanded the claims for further development. These matters are now returned to the Board for further appellate review. After the most recent December 2020 Supplemental Statement of the Case (SSOC) was issued, the Veteran filed a February 2021 request for a higher level review (under the new Appeals Modernization Act framework). See Form 20-0966. However, on that form, the Veteran failed to elect to withdraw his pending appeal before the Board. In April 2021, the agency of original jurisdiction (AOJ) notified the Veteran that his request for a higher level review could not be accepted. 1. Entitlement to service connection for sleep apnea, to include as secondary to GERD or hypertension The Veteran contends that he has sleep apnea that onset during his active service. In the alternative, he asserts that he has sleep apnea that was caused or aggravated by his service-connected GERD or hypertension. See Correspondence, October 2010 and January 2013. The Veteran's service treatment records from his first period of active service were found by the RO to be unavailable after exhausting reasonable administrative efforts to obtain the records. In June 2000, a PIES request was sent to the National Personnel Records Center (NPRC) for the records. In November 2000, a negative reply was received, and it was suggested that the records be sought at the Records Management Center (RMC). A request for the records was sent to the RMC, but in April 2014, a negative response was received. In June 2012, the Veteran sent a letter to the RO stating that he did not have any copies of his Air Force records. In April 2014 and August 2015, the RO notified the Veteran that the records were unable to be found. In June 2015, a report of contact by telephone shows the Veteran stated that his claims all related to his second period of service in the Army, and not to his prior Air Force records. The Board finds that all reasonable administrative efforts to obtain the service treatment records from his first period of active service have been performed, that VA's duty to assist has been satisfied, and the claims are ready for further appellate review. The Veteran's service treatment records from his second period of active service are silent as to any sleep complaints. His separation examination report and medical and physical evaluation board reports show no sleep complaints. See Records, received December 1999 at p.2 of 2. Post-service, a November 2007 VA treatment record noted in the review of systems that the Veteran was negative for waking up with shortness of breath at night, and for sleeping with more than one pillow to prevent shortness of breath. See CAPRI, received May 2008 at p.64 of 89. The earliest record of complaint of sleep trouble is a March 2008 VA treatment record that shows the Veteran reported sleep irregularity and a history of obstructive sleep apnea, and he was referred to the sleep clinic. See CAPRI, received December 2014 at p.215 of 359. A May 2008 sleep study revealed severe obstructive sleep apnea. See id. at p.196. The Veteran testified at a May 2012 DRO hearing that his wife told him sometime between 2000 and 2002 that he stopped breathing during his sleep. See Transcript, received May 2012 at p.9-10; see also Board hearing transcript at p.5. The Veteran submitted a February 2020 buddy statement in support of his claim, in which C.C. reported that he served with the Veteran from 1995 to 1999, and that he witnessed the Veteran snore loudly and that he often fell asleep immediately while riding in a car. He also submitted a May 2020 buddy statement from B.H. in which he reported he lived in the same barracks as the Veteran from 1996 to 2000, and that he could hear the Veteran snore excessively. An October 2016 VA examination report shows the Veteran reported that his bunkmates complained during service that he snored, and that his wife told him he stopped breathing during his sleep in 2000. The examiner noted the Veteran was not seen medically for sleep complaints until 2008. The examiner noted a review of the file, including the Board hearing testimony and several articles submitted by the Veteran. The examiner opined the Veteran's sleep apnea was less likely than not caused by his active service. The examiner reasoned there was no record of complaint in the service treatment records, and no record of complaint in his post-service treatment records until 2008 despite having been seen at least once yearly since 2000, and most years more than once. The examiner further noted that between 2000 and 2008, the Veteran gained 20 pounds, which placed his weight into the obese weight category, thereby increasing his risk of developing sleep apnea. The examiner acknowledged the buddy statement regarding the Veteran snoring in service, and the wife's lay report of symptoms since 2000. The examiner reasoned, however, that a retrospective diagnosis based solely on lay reports of symptoms is not appropriate and does not represent the standard in medicine, and that symptomatology is not the equivalent of disease. Regarding secondary service connection, the October 2016 VA examiner opined that the Veteran's sleep apnea was not caused by GERD or hypertension. The examiner noted a review of all of the articles submitted by the Veteran, but noted that none of these articles showed any etiological link between GERD and sleep apnea. The examiner noted a review of current medical evidence using Access Medicine, an electronic text reference database, as well as PubMed, an electronic database of over 26 million articles, and there were no resources found showing an etiological link between GERD and sleep apnea, or hypertension and sleep apnea. In fact, the examiner noted that a review of the medical literature showed the contrary, that sleep apnea can worsen hypertension, which was the only scientifically established relationship between sleep apnea and hypertension at this time. No opinion regarding aggravation was provided. A November 2020 VA examination report shows the examiner acknowledged the buddy statement of the Veteran's symptoms in service including snoring, as well as the statement of symptoms by the Veteran's wife regarding the Veteran stopping breathing during his sleep. The examiner opined that it is less likely than not that the Veteran's sleep apnea had its onset in service or is otherwise etiologically related to his active service. The examiner reasoned that there was no record of complaint or treatment until 2008, the Veteran gained over 20 pounds from December 2000 to the time of diagnosis in April 2008, and that obesity is one of the major risk factors for obstructive sleep apnea. The examiner noted that although lay statements of symptoms are of significance, a diagnosis of sleep apnea based on lay statements of snoring and absent breathing without objective findings (clinical and sleep studies) is not possible. Regarding secondary service connection, the November 2020 VA examiner opined it is less likely than not that the Veteran's sleep apnea was caused or aggravated by his service-connected GERD or hypertension. The examiner reasoned that obstructive sleep apnea is caused by a mechanical obstruction of the upper airway resulting in negative impacts on the airway during sleep, and that although studies support an association between sleep quality disturbances and GERD and hypertension insofar as the two conditions often coexist, there is no physiological mechanism whereby obstructive sleep apnea is caused or aggravated by GERD or hypertension. Having carefully considered all of the evidence of record, the Board finds that the weight of competent and probative evidence is against finding that the Veteran's obstructive sleep apnea had its onset in service or is otherwise caused by his active service. There is no medical opinion that etiologically links this Veteran's obstructive sleep apnea to his active service. Rather, both VA examiners in 2016 and 2020 opined that it is less likely than not that the Veteran's sleep apnea was caused by his active service or had its onset in service, and both examiners provided detailed rationales for their opinions. They both attributed the Veteran's obstructive sleep apnea to his post-service weight gain, noting that he gained 20 pounds from 2000 to the time of diagnosis in 2008, and that obesity is a risk factor. In December 1999, shortly before discharge, he weighed only 178 pounds. See STR, received November 2009 at p.27 of 93; see also CAPRI, received December 2014 at p.340 of 359 (179 pounds in December 2000). At the time of diagnosis, in May 2008, the Veteran was 66 inches tall and weighed 200 pounds with a BMI of 32.3. See CAPRI, received March 2009 at p.9 and 22 of 22. There is no medical opinion that contradicts the examiners' opinions. Instead, the contemporaneous medical records in service and post service support the examiners' opinions that the Veteran gained 20 pounds after service, to which weight gain the examiners attribute the Veteran's obstructive sleep apnea. The Board finds that this contemporaneous medical evidence of post-service weight gain, followed by diagnosed obstructive sleep apnea, coupled by two VA examiner opinions that the obstructive sleep apnea was caused by the post-service weight gain, to be by far the most probative evidence with regard to the etiology of the sleep apnea. Regarding the claimed secondary service connection, the Board finds the weight of competent and probative evidence is against finding the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected GERD or hypertension. There is no medical evidence of record that tends to etiologically link this Veteran's obstructive sleep apnea to his GERD or hypertension (causation or aggravation). Rather, the October 2016 and November 2020 VA examiners opined that it is less likely than not that the Veteran's sleep apnea was caused by his GERD or hypertension, and the November 2020 VA examiner opined it was less likely than not aggravated by his GERD or hypertension. The examiners provided detailed rationales for their opinions, which included consideration of the lay observations of the Veteran's buddies in service and of his wife. There is no medical opinion of record that contradicts the opinions of the VA examiners regarding secondary service connection in this Veteran. Without any medical opinion tending to link the Veteran's obstructive sleep apnea to his GERD or hypertension (causation or aggravation), there can be no secondary service connection. The Board has considered all of the articles submitted by the Veteran in support of his contention that his sleep apnea is secondary to his service-connected GERD. In November 2009, he submitted a web page from easyacidreflux.com noting that "some research has shown that severe acid reflux will exacerbate the sleep apnea," but no citations were provided, and the author is unknown. Therefore, the Board finds it has no probative value. Another article submitted in November 2009 from electrotek.com, Acid Reflux and Sleep Apnea, by Ryan English, states that "gastric contents can come up to your throat and block the passage of air towards your trachea," which language is merely speculative and has no probative value. Also, the article does not provide the author's credentials, such that it is unclear if it constitutes a medical opinion, and for that reason has no probative value. Another article from November 2009, What is the Relation Between Sleep Apnea and Acid Reflux, appears to be posted on a website that sells aromatherapy oils, by an unknown author, such that it is unclear if it constitutes a medical article or medical opinion, and therefore has no probative value. The Veteran also submitted a WebMD article in January 2013, stating "Some researchers believe that obstructive sleep apnea results in airway pressure changes that can cause reflux to occur, yet other researchers believe that the reflux of acids . . . can then lead to sleep apnea," and "with sleep apnea, people tend to breathe harder because their breathing has stopped, and that could induce reflux." Thus, the article gives conflicting views as to whether obstructive sleep apnea may cause acid reflux, versus whether acid reflux causes sleep apnea. As there is no clear synthesis between the two points or conclusion, due to the conflicting statements, the Board finds this article to have no probative value. Also, in January 2013, the Veteran submitted an internet article, Sleep Apnea and High Blood Pressure, which states that a "one of the worst complications you can get from long term untreated sleep apnea is high blood pressure or hypertension," such that the article suggests sleep apnea causes hypertension, and the Board finds this article is not supportive of secondary service connection. The author is also unknown, such that it is not clear whether it is a medical article. The Board adds that none of the articles submitted pertain specifically to this Veteran and the facts and circumstances of his sleep apnea, GERD, and hypertension. In that respect, they also lack probative value. The Board acknowledges the two buddy statements of record in which they reported witnessing the Veteran snore in service, and one wrote that the Veteran would fall asleep riding in cars. The Board does not doubt the credibility of these two buddy statements that the Veteran snored during his active service or that he fell asleep in cars. However, as explained by the November 2020 VA examiner, "a diagnosis of sleep apnea based on lay statements of snoring and absent breathing without objective findings (clinical and sleep studies) is not possible." In other words, snoring alone, and being sleepy in a car, without any clinical evidence such as the results of a sleep study or a medical sleep consultation, does not tend to prove that the Veteran had obstructive sleep apnea during his active service. Rather, it tends to prove snoring and sleepiness occurred. The Board also acknowledges the Veteran's testimony at the May 2012 DRO hearing that his wife told him sometime between 2000 and 2002 that he stopped breathing while sleeping. The Board notes that the Veteran never testified that this occurred during his active service. In fact, the Veteran explained that during service, he did not live with his wife. He testified that during service, he was either on deployment or in Louisiana while his wife remained in Birmingham. Moreover, he admits in a July 2009 statement that "I really do not know when I start[ed] having this sleep disorder." Thus, his lay report regarding his wife's observations does not tend to relate his sleep apnea to his active service. The Board has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), in which the Court of Appeals for Veterans Claims held that "while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible." In this decision, the Board accepts the credibility of the buddy statements that the Veteran snored in service and fell asleep riding in cars. However, the Board finds that snoring and falling asleep in a car is not sufficient to show that it is at least as likely as not that the Veteran's obstructive sleep apnea had its onset during his active service. Rather, the Board finds that these lay reports competently and credibly show the Veteran snored and fell asleep. As already discussed above, the Veteran's wife did not observe sleep disordered breathing until after service. The November 2007 VA treatment record shows the Veteran did not have difficulty breathing during sleep at that time. The reports of snoring and falling asleep during service are not sufficient to bring the evidence into relative equipoise in this particular case, especially where obstructive sleep apnea was not clinically diagnosed until eight years later in 2008, and given the Veteran's post-service weight gain during that eight-year period with two medical opinions attributing the sleep apnea to that weight gain. The Board has also considered the case of Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015), which was raised by the parties in their joint motion for remand. In that case, the Court held that "the Board may weigh a claimant's lay statements against the absence of contemporary medical evidence . . . However, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. . . [T]he absence of evidence cannot be substantive negative evidence without a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact." The Court in Fountain gave an example of Federal Rule of Evidence 803(7), to the effect that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded." In the spirit of the Court's holding in Fountain, in this case, the Veteran was examined for medical separation in July 1999, and his list of conditions and complaints at that time, at a time when any medical problems would be recorded, did not include any sleep complaints. He was also medically separated after a physical evaluation board proceeding, and again, no sleep complaints were noted. However, regardless of the lack of record of complaint in service, the Board finds the facts of the Fountain case to be distinguishable from the instant case where here, the VA examiners did not merely rely on a lack of medical record of complaint in service. Instead, both VA examiners in this case opined that the Veteran gained 20 pounds after service, that obesity is a risk factor for obstructive sleep apnea, and that this Veteran's obstructive sleep apnea was caused by his post-service weight gain. Although the VA examiners noted the Veteran's medical history leading up to that diagnosis, which shows no sleep complaint prior to 2008, neither examiner relied on absence of a record of complaint prior to 2008 as a basis for their opinions. In the November 2007 outpatient review of systems, the Veteran denied waking up short of breath at night. To the extent that the Veteran, as a lay person, opines that his obstructive sleep apnea was caused or aggravated by his service-connected GERD or hypertension, the Board ultimately finds the opinions of the two VA examiners to be by far more probative based on their medical education, training, and experience, and because they provided more detailed rationales for their opinions. As a final matter, the Board acknowledges that the Veteran, by way of his representative, alleged for the first time in an April 2021 brief that his sleep apnea was caused by several of his service-connected disabilities, namely, PTSD, lumbar strain, gout, migraines, right shoulder disability, radiculopathy of the upper and lower extremities, and a right ankle strain. No rationale for the assertion was offered, or citation to any medical record except the representative cited to a medical article, Chronic widespread musculoskeletal pain in patients with obstructive sleep apnea syndrome and the relationship between sleep disorder and pain level, quality of life, and disability, and provided a weblink. The article concludes that sleep loss causes hyperalgesia, not that pain causes sleep apnea. There is no medical evidence tending to indicate any etiological link between the Veteran's obstructive sleep apnea and any of the above listed service-connected disabilities. Therefore, the Board finds that a preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea was caused or aggravated by any of these service-connected disabilities. Therefore, in summary, the Board concludes that entitlement to service connection for sleep apnea, to include as secondary to service-connected GERD or hypertension, or as secondary to other service-connected disability, is not warranted; as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. REASONS FOR REMAND Entitlement to service connection for a cervical spine disability The Veteran asserts that he has a cervical spine disability due to a whiplash injury during both periods of his active service, as due to repetitive motion injury based on his job duties as a construction equipment operator and heavy wheeled vehicle repairer. See Brief, April 2021 at p.3; NOD, April 2014; DD Form 214; Personnel records, received April 2015 at p.18. In the alternative, he asserts that he has a cervical spine disability secondary to his service-connected gout. See Form 21-526, March 2013; CAVC at p.42. As an initial matter, the Board acknowledges that an August 1999 medical evaluation board record shows the Veteran injured his back playing flag football after falling in a hole, and that he also reported neck stiffness since the incident. See Records, received December 1999 at p.1 of 6. A September 2016 VA examination report shows diagnosed degenerative joint disease of the cervical spine. Most recently, in April 2020, the Board remanded the claim so that a new VA examination could be obtained to address whether the Veteran's claimed cervical disability was caused or aggravated by his service-connected gout. A November 2020 VA examination was performed, and the examiner opined "there is no physiological mechanism whereby the claimant's whiplash might be the primary casual etiology for the current cervical spinal disability. Therefore, it is less likely than not the Veteran's cervical spine disability had its onset during any period of active military duty service, or is otherwise etiologically related to service, to include his reported in-service whiplash injury." However, the examiner's opinion later states "The Veteran's cervical spine disability was not caused by or aggravated by his service connected gout as the cervical spine is a result of initial whiplash status post motor vehicle accident." Thus, the examiner gave conflicting medical opinions, and it is not clear which is a typographical error. Therefore, the Board finds the claim should be remanded for clarification as to whether the Veteran's claimed cervical disability is related to his active service or secondary to his service-connected gout. In addition, on remand, the VA examiner should address the contentions put forth in a recent April 2021 brief that the Veteran's cervical condition was caused by repetitive motions resulting from the Veteran's job duties as a construction equipment operator and heavy vehicle repairer. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion based on a review of the entire claims file, including this remand, to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a cervical disability that is related to his active service, including his reported history of a whiplash injury during his both periods of active service, and including as due to repetitive motion injury as a heavy equipment operator during his USAF service, and a heavy wheeled vehicle repairer during his Army service. An examination is necessary if required by the examiner to form an opinion. Also, please ask the VA examiner to address whether it is at least as likely as not that the Veteran's cervical condition was caused or aggravated by his service-connected gout. Note that the Veteran's service treatment records from his first period of active service (USAF) have been found to be unavailable. Please direct the VA examiner's attention to an August 1999 medical evaluation board record showing neck complaint. See Records, received December 1999 at p.1 of 6. Any opinion must be accompanied by a complete rationale. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.