Citation Nr: 21031274 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-42 251 DATE: May 21, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as due to exposure to herbicide agents and contaminated water at Camp Lejeune, is denied. FINDING OF FACT The preponderance of competent evidence tends to show that it is less likely than not that the Veteran's current OSA disability was incurred as a result of exposure to herbicide agents, contaminated water at Camp Lejeune, or from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA, to include as due to exposure to herbicide agents and contaminated water at Camp Lejeune, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In May 2018 the Board remanded the issue on appeal to obtain outstanding records identified by the Veteran as relevant to the claim and for the Agency of Original Jurisdiction to provide the Veteran with another VA examination. Subsequently, after a March 2021 Supplemental Statement of the Case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the outstanding records were either obtained or identified as "destroyed" and the Veteran was afforded VA examinations for his OSA issue on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for OSA, to include as due to exposure to herbicide agents and contaminated water at Camp Lejeune. The veteran contends service connection for OSA. At the outset, the Board notes that the Veteran had a polysomnography with titration, which showed a diagnosis of OSA. See 10/26/2011 Medical Treatment Records Government Facility, at page 13; see also 10/28/2014 Medical Treatment Records Government Facility, at page 7; 7/3/2019 Medical Treatment Records Non-Government Facility, at page 9. Therefore, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, the Veteran asserted that he had OSA since his service in Vietnam. See 12/13/2013 VA 21-526EZ. Additionally, the Veteran asserted exposure to Agent Orange in Vietnam and to contaminated water at Camp Lejeune. See 11/1/2011 VA 21-4138; see also 11/21/2011 VA 21-0820. The Board notes that the Veteran's service records confirm service in Vietnam during the Vietnam Era. See 9/29/2014 Military Personnel Record, at page 5. Therefore, exposure to herbicide agent is presumed. 38 C.F.R. § 3.307(a)(6). Additionally, the Veteran's service records confirm service at Camp Lejeune for more than 30 days in 1968. See 9/29/2014 Military Personnel Record, at page 2. Therefore, he is presumed to have been exposed to contaminated drinking water at Camp Lejeune. 38 C.F.R. § 3.307(a)(7). Thus, the second element of service connection has been met. The question before the Board therefore becomes whether there is a so-called "nexus" between the Veteran's current OSA disability and service or to a service-connected disability. OSA is not listed as a disease as presumed due to service from herbicide agent exposure or exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(e)-(f). As such, presumptive service connection is not for application, but the Board will explore direct service, to include whether these in-service event/injuries cause his current OSA. The competent and probative evidence tends to weigh against a finding that the Veteran's OSA disability is directly related to exposure to herbicide agents or contaminated water at Camp Lejeune. This aspect of the claim is discussed below, as VA examiners explained that the medical literature does not provide evidence of a link between exposure to herbicide agents or contaminated water at Camp Lejeune, and OSA. The Veteran underwent a VA respiratory examination in February 2012. At the conclusion of the examination, the examiner provided a negative nexus opinion. However, the examiner did not provide an opinion on whether OSA had its onset in service. See 2/13/2012 VA Examination. Additionally, a September 2014 examination addendum was inadequate since its opinion was based on incorrect information about the Veteran's service period. Additionally, the examiner did not accurately address the Veteran's medical history. See 9/26/2014 C&P Examination. Thus, the Board affords this opinion no weight. After the May 2018 Board remand, in September 2019 the Veteran underwent another VA examination. At the conclusion of the examination, the examiner opined that OSA was less likely than not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The examiner stated that the Veteran had multiple risk factors for developing OSA, such as a history of hypertension and obesity. The examiner further stated that there is no medical documentation of an association between contaminated water at Camp Lejeune and the develop of OSA and provided medical literature to support his opinion. See 9/10/2019 C&P Examination. However, the examiner did not render an opinion about whether the Veteran's OSA was related to the presumed exposure to herbicide agents or due to an in-service injury, event, or disease. As such, the Board affords this opinion some weight regarding contaminated water, but little weight regarding any relationship to exposure to herbicide agents. The Veteran underwent a VA sleep apnea examination in December 2020. At the conclusion of the examination, the examiner rendered a negative opinion stating that the Veteran had multiple risk factors for developing OSA, such as a history of hypertension and obesity. Additionally, the Veteran stated that there is no medical documentation of an association between contaminated water at Camp Lejeune and the develop of OSA and provided medical literature to support his opinion. Further, the examiner stated that OSA is a condition typically associated with genetic issues and lifestyle factors, and not due to chemical factors. See 12/16/2020 C&P Examination. After the December 2020 VA examination, in March 2021 an addendum opinion was obtained. The examiner opined that there is no medical documentation of an association between exposure to herbicide agents and the develop of OSA, which is a disability typically associated with genetic issues and lifestyle factors, and not to chemical exposure. Additionally, the examiner stated that the Veteran had multiple risk factors for developing OSA, such as a history of hypertension and obesity. See 3/17/2021 C&P Examination. The Board finds the December 2020 VA opinion to be highly persuasive and worthy of much weight regarding the issue of whether the Veteran's current OSA disability is related to service. The Board finds that the rationale is logically supported, based on familiarity with the Veteran's relevant medical history, and deserves great weight. Additionally, the Board places great probative weight on the December 2020 VA opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture, to include consideration of relevant facts such as the post-service medical record. The Board notes that the December 2020 opinion did not discuss whether the Veteran's OSA was related to the presumed exposure to herbicide agents or due to an in-service injury, event, or disease. However, the March 2021 addendum clarified that service connection for OSA was not related to the presumed exposure to herbicide agents or due to an in-service injury, event, or disease. As such, the Board finds that when reading both the December 2020 and March 2021 reports together, to include the rationales, that a logical and supported rationale was provided. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). The Board also acknowledges the lay statements from the Veteran. Such statements assert that the Veteran's OSA was related to exposure to herbicide agents and contaminated water at Camp Lejeune. See 9/29/2014 Military Personnel Record, at pages 2 and 5. The Veteran is certainly competent to report his symptoms. However, the Veteran is not competent to attribute his symptoms to exposure to herbicide agents or contaminated water in Camp Lejeune as the record does not reflect that she has medical training and/or experience. Therefore, the Veteran's opinion on the etiology of the current OSA disability is not competent and it lacks weight. The competent medical evidence, such as the December 2020 and March 2021 medical opinions, heavily outweigh the Veteran's opinion and tend to show that the Veteran's OSA disability was not due to service. As discussed above, the Board finds this opinion to be probative and deserving weight as there is a supporting rationale why, to include reference to relevant facts in the record. In sum, service connection for OSA is not warranted, to include on various theories of entitlement. As the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the appeal is denied. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fuentes, 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.