Citation Nr: 21030763 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-36 916 DATE: May 19, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected allergic rhinitis, is denied. REMANDED Entitlement to service connection for a heart disability, to include as secondary to service-connected hypertension (currently rated as stage II chronic kidney disease), is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's sleep apnea began during active service, is otherwise etiologically related to service, or is secondary to service-connected allergic rhinitis. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to October 1985 and November 1986 to November 1990. The matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the claims file. In December 2019 and October 2020, the Board remanded the matters for further development. The Board finds there has been substantial compliance with its remand directives regarding the claim for service connection for sleep apnea. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran's claim for an increased rating for somatic symptom disorder with other depressive disorder will be addressed in a later Board decision as the Veteran has not yet been provided a Board hearing concerning that claim. Moreover, the Board acknowledges that the Veteran has an Appeals Modernization Act (AMA) appeal which will be the subject of a future Board decision after his requested Board hearing is provided. Service Connection for Sleep Apnea The Veteran contends that his sleep apnea began during active service. Alternatively, he alleges that his condition is secondary to his service-connected allergic rhinitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. After considering all of the evidence of record, the Board concludes that the preponderance of the evidence is against finding that the Veteran's sleep apnea is related to service or secondary to his service-connected allergic rhinitis. The Veteran's service treatment records (STRs) do not contain any complaints of, diagnoses of, or treatment for sleep apnea. The Veteran's post-service treatment records indicate that he was diagnosed with sleep apnea in 2011. In March 2019, the Veteran submitted a letter from his VA physician, Dr. T.N., noting that there has been some cases that show sleep apnea could be caused by allergic rhinitis and/or can be worsened by allergic rhinitis. No medical opinion regarding the Veteran's condition in this case was provided. Moreover, in a December 2019 VA note, Dr. T.N. indicated that the Veteran's body habitus contributes to his sleep apnea. A February 2020 VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She reasoned that the Veteran's STRs were silent for complaints or symptoms related to sleep apnea and he was not diagnosed with sleep apnea until 21 years following separation from service. The examiner acknowledged the submitted statement from a fellow service member, J.C., that reported that the Veteran snored during active service; however, she indicated that while snoring is associated with a sensitivity of 80 to 90 percent for the diagnosis of obstructive sleep apnea, its specificity is below 50 percent. Thus, she concluded that the evidence suggests that the Veteran's sleep apnea is more likely than not secondary to obesity, advancing age, and male gender. A February 2021 VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She indicated that there is no evidence that indicates that the Veteran reported sleep apnea symptoms during active service. The examiner acknowledged the submitted statement from a fellow service member, J.C., regarding the Veteran's snoring but indicated that the first documentation of apneic episodes was not until 2010, 20 years after discharge from service, and at that time his body mass index (BMI) was in the morbid obese range. Regarding secondary service connection, the examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or aggravated beyond natural progression by his service-connected allergic rhinitis. She indicated that in February 2016, the Veteran's ENT doctor indicated that his sleep apnea was not secondary to his allergic rhinitis because there was no evidence of significant, recurrent congestion that would lead to breathing difficulties. She further indicated that the Veteran's physician, Dr. T.N., indicated that his body habitus is the contributing factor to his sleep apnea. The examiner noted that although there is medical evidence that shows a co-existence of allergic rhinitis and obstructive sleep apnea, there has to be considerably high incidence of allergic rhinitis without other contributing factors such as BMI and neck circumference. She further noted that medical literature indicates that the main risk factors for obstructive sleep apnea are obesity, large neck circumference, male gender, and hypothyroidism. The examiner indicated that the Veteran has all of these risk factors and that there is no evidence that his allergic rhinitis has caused chronic/constant/recurrent congestion/blockage. The Board finds the February 2021 VA examiner's opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Board finds that the examiner adequately considered the Veteran's reports and lay statements of record regarding in-service snoring and apneic symptoms and concluded that these reports are not indicative of sleep apnea. Moreover, while the examiner considered the submitted articles indicating a potential relationship between sleep apnea and allergic rhinitis, she detailed the Veteran's medical history and pertinent medical literature and explained that the Veteran's sleep apnea was less likely than not secondary to his service-connected allergic rhinitis. Accordingly, the Board accepts the February 2021 VA examiner's opinion as the most probative evidence as to whether the Veteran's sleep apnea is related to service or is secondary to service-connected allergic rhinitis. As mentioned above, the Board finds that service connection for sleep apnea is not warranted. The Board finds that the evidence weighs against a finding that the Veteran's sleep apnea is related to service or is secondary to his service-connected allergic rhinitis. The only evidence of any relationship between sleep apnea and service are the Veteran's statements and other lay statements of record made in support his claim. However, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of a medically complex disorder such as sleep apnea. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With respect to the other lay statements of record submitted by J.C. and the Veteran's daughter, B.B., the Board finds that they have not demonstrated any specialized knowledge or expertise to indicate they are capable of rendering a competent medical opinion. Id.; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, although the Board has carefully considered the lay contentions of record, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay statements of records. As discussed above, the Board affords more probative weight to the competent medical opinion of the February 2021 VA examiner. Lastly, the Board acknowledges that the Veteran proffered several Board decisions that granted service connection for sleep apnea as secondary to rhinitis. However, the Board notes that prior Board decisions are not precedential, and "previously issued Board decisions will be considered binding only with regard to the specific case decided." 38 C.F.R. § 20.1303. "Each case presented to the Board will be decided on the basis of the individual facts of the case." Id. Therefore, the Board finds the previous Board decisions to be of minimal probative value as these prior decisions are not based on the facts specific to the Veteran's case at hand. In sum, the Board finds that no competent evidence exists that indicates that the Veteran's sleep apnea is related to service or secondary to his service-connected allergic rhinitis. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for sleep apnea must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Service Connection for a Heart Disability The Veteran contends that his heart disability is secondary to his service-connected hypertension, currently rated as stage II chronic kidney disease. Pursuant to the Board's October 2020 remand directives, the Veteran was afforded a VA examination in February 2021. Regarding aggravation, the examiner opined that the Veteran's heart disability was less likely than not aggravated beyond its natural progression by his service-connected hypertension. The examiner reasoned the Veteran had an elevated BMI ranging from obese to morbid obese with hyperlipidemia at the time of his hypertension diagnosis; therefore, to separate and say his heart disability was aggravated beyond natural progression cannot be established since his BMI and hyperlipidemia were also present at the time with his hypertension and these play a major role in cardiovascular disease as well. The Board finds the February 2021 VA examiner's rationale as to whether the Veteran' service-connected hypertension played any part in aggravating his heart disability is inadequate. Accordingly, remand is warranted to obtain an addendum medical opinion regarding whether the Veteran's heart disability has been aggravated beyond normal progression by his service-connected hypertension. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, forward the claims file to a qualified medical professional to obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's heart disability. If the examiner determines that another physical examination is necessary, such an examination should be scheduled. Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's heart disability has been aggravated beyond normal progression by his service-connected hypertension. In rendering the requested opinion, the examiner should consider and comment on the article submitted by the Veteran in September 2017 indicating a relationship between the arteries and hypertension. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.