Citation Nr: 21032533 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-34 359 DATE: May 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected asbestosis, is denied. FINDING OF FACT The evidence of record does not indicate that the Veteran's sleep apnea had its onset during or is otherwise related to his active service, nor does it indicate that the Veteran's sleep apnea is proximately due to, the result of, or aggravated by his service-connected asbestosis. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from February 1960 to January 1962, with subsequent inactive service. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a separate Veterans Law Judge at a March 2018 hearing. A transcript of that hearing has been added to the Veteran's file. In a June 2018 decision and remand, the Board granted a claim for service connection for asbestosis, while remanding the claim for service connection for sleep apnea. The Board then again remanded this claim in December 2019. The June 2018 remand directed that the RO obtain the Veteran's updated VA treatment records, and that it obtain adequate opinions regarding the etiology of the Veteran's sleep apnea. The December 2019 remand directed that the RO readjudicate the case to review records obtained following its more recent adjudication. A review of the Veteran's file shows that each of these directives have been accomplished. Additional VA treatment records were obtained and added to the Veteran's file, adequate VA opinions have been obtained, and the case was subsequently readjudicated. The Board thus finds substantial compliance with its previous remand instructions. Prior to this point, there appeared to be some concern about whether the Veteran had perfected his appeal to the Board. This confusion seems to have arisen from an e-mail from an RO official following the Board's June 2018 remand, noting that the Veteran had not responded to a supplemental statement of the case. Once the Veteran's claim was in appellate status, however, no such response was necessary for him to maintain his appeal. It is clear that the Veteran had properly appealed this issue, and indeed, the Board (and VA) had taken action consistent with that appeal. The Board finds this issue to clearly have been properly appealed, and no further action or discussion is required. In a November 2020 letter, the Board notified the Veteran that the Veterans Law Judge (VLJ) who held the prior hearing was unavailable to further review the case, and there was the opportunity for a new hearing. Since there was not a response returned from the Veteran, the case proceeds on the current record. 1. Service connection for sleep apnea is denied Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Both private and VA records reflect that the Veteran currently suffers from sleep apnea. A September 2010 private treatment record shows a diagnosis of "extremely severe obstructive sleep apnea." The Veteran was thereafter prescribed a CPAP machine. A November 2014 VA examination confirmed the Veteran's sleep apnea diagnosis. The current disability criterion is met. For direct service connection, there is no evidence that the Veteran suffered from sleep apnea during his active service, or that his claimed disability is directly related to his active service. The Veteran's service treatment records do not show treatment for this disability, nor do they show symptoms consistent with such a diagnosis (though there was earlier concern regarding the completeness of the Veteran's active service treatment records, numerous such records have been obtained and indeed have formed the basis for the grant of service connection for other disabilities). There is also no competent evidence linking the Veteran's disability to his active service. Service connection on a direct basis is therefore not warranted. The Veteran, however, has not contended that his sleep apnea is directly related to his active service. Instead, the Veteran has consistently since filing his claim for service connection in June 2014 contended that his sleep apnea is secondary to his now service-connected asbestosis. That said, there is no competent evidence linking the Veteran's current sleep apnea to his service-connected asbestosis. The November 2014 examiner concluded that the Veteran's sleep apnea was less likely than not related to any "asbestos related respiratory condition." The examiner noted that obstructive sleep apnea "is caused by obstruction of the upper airway resulting in apneic episodes." He continued that there "is no clinical correlation between the upper airway condition and asbestosis which manifests as an interstitial lung disease." In an April 2019 opinion, a separate VA examiner concluded that it is less likely than not that the Veteran's asbestosis had aggravated the Veteran's sleep apnea beyond its normal progression. This examiner acknowledged that sleep apnea "has a well accepted relationship with idiopathic pulmonary fibrosis, such a relationship is not well established with asbestos related interstitial lung disease." He noted that the Veteran had not demonstrated "evidence of interstitial lung disease either by imaging or pulmonary function testing." The examiner further noted that the Veteran had other independent risk factors for developing sleep apnea (namely his higher BMI), and that testing showing improvement in the Veteran's sleep apnea "over time is not consistent with a progressive lung condition (asbestos related lung disease) being a causal or aggravating factor to the Veteran's sleep apnea." Most recently, a November 2019 opinion contained a review of the Veteran's relevant pulmonary function tests and the history of his asbestosis as reflected by the medical records in his file. After reviewing this evidence, the examiner concluded that the Veteran's sleep apnea was less likely than not aggravated beyond its normal progression by asbestosis. The examiner noted that "[t]here is no imaging evidence of pulmonary fibrosis, nor is there an abnormal DLCO in recent PFTs which would indicate hypercapnia exists and that would show worsening of [the Veteran's sleep apnea] by the asbestosis." When read together, these three opinions are probative evidence against the Veteran's claim. First, the Board finds these opinions to be adequate, as they are based on a review of the Veteran's entire claims file, make specific references to treatment records from the Veteran's file, and (for the latter opinions) responded directly to the question posed by the Board in its previous remand. The Board also finds this evidence to be probative. Together, these three examiner cogently explained why the Veteran's sleep apnea is not proximately due to or the result of his asbestosis (noting, for instance, the lack of correlation between the Veteran's specific symptoms of his asbestosis and his sleep apnea), and why his asbestosis has not aggravated his sleep apnea (noting again that his sleep apnea had improved rather than worsened, which would be inconsistent with the idea that his asbestosis had aggravated his sleep apnea). These opinions are consistent with the other evidence of record. A February 2013 private treatment record showed that the Veteran had "bilateral pleural thickening compatible with asbestos-related pleural disease." That same record, however, reflected that the Veteran's "[p]ulmonary function studies show minimal airway obstruction" and that he had "no evidence of pulmonary disability." In support of his claim, the Veteran submitted a June 2014 private disability benefits questionnaire (DBQ). The reviewing doctor noted the Veteran's September 2010 diagnosis of sleep apnea, but provided no information regarding its etiology. Beyond that, there is no other competent evidence establishing that the Veteran's asbestosis has either caused or aggravated his sleep apnea as required for secondary service connection. In his notice of disagreement, the Veteran stated that his doctors had suggested that such a relationship exists. There is, however, no corroborating documentation from his treating physicians regarding that relationship. In the absence of such evidence (and without comment or finding as to the competency or credibility of the Veteran's statement), the probative evidence from the VA examiners outweighs the contention from the Veteran that his doctors have established such a relationship. To the extent that the Veteran contends that his current sleep apnea is secondary to his asbestosis, the Board does not find this contention to be competent. Determining the etiology of a disability such as sleep apnea is complex, requiring specialized medical knowledge or training which the Veteran is not shown to possess. Accordingly, his statements alone cannot be considered competent evidence in support of his claim. In summary, the Board finds that while the Veteran is diagnosed as suffering from sleep apnea, there is no competent evidence establishing that his disability began during or is otherwise related to his active service. The Board further finds that the probative evidence of record indicates that it is less likely than not that his sleep apnea is proximately due to, the result of, or aggravated by his service-connected asbestosis. The weight of the evidence is against the Veteran's claim for service connection. There is no doubt to be resolved. Service connection for sleep apnea is therefore denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lyons, 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.