Citation Nr: 21040288 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-15 067 DATE: July 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran's obstructive sleep apnea was not incurred in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1982 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. In January 2019, the Board remanded the Veteran's claim for further development. Specifically, the Board directed the RO to obtain any outstanding medical records, attempt to verify the Veteran's service in the Air Force Reserves, and afford the Veteran a VA examination. The Board finds there has been substantial compliance with the January 2019 Board's directives. Regarding VA's duty to assist, the record reflects that VA has made reasonable efforts to obtain service records. In a February 2020 service treatment records certification, it was determined that the paper service treatment records for the Veteran's service ending in March 1997 could not be retrieved. In July 2020, VA contacted the National Personnel Records Center (NPRC) to retrieve the Veteran's service treatment records and those records were uploaded to the Veteran's claims file. Despite VA's efforts, there appears to be missing service treatment records related to the Veteran's time with the Arkansas National Air Force. When service treatment records are lost or missing, through no fault of the Veteran, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision. No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing service records. The agency of original jurisdiction notified the Veteran of these missing service treatment records in a January 2021 notice and asked the Veteran to send any records still in his possession but received no further records from the Veteran. The Board concludes that all procedures to obtain any missing service treatment records were correctly followed. Since all efforts have been exhausted, further attempts would be futile. 38 C.F.R. §§ 3.159(c)(2), (3). Entitlement to service connection for obstructive sleep apnea The Veteran believes his obstructive sleep apnea had its onset during service. The Veteran stated that his sleep apnea may have been caused or aggravated by injuries he sustained during an accident that occurred in September 1995. In a March 2014 statement, the Veteran stated that the issue with his sleep apnea started after his Air Force service, especially after the injuries received in 1995 with an injury to his breathing diaphragm. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a disability, a Veteran must show: (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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The Board has carefully reviewed the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea. The reasons follow. As to evidence of a current disability, a November 2019 VA Examination report shows that the Veteran has obstructive sleep apnea. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of a disease or injury, the service treatment records do not show that the Veteran complained of or was treated for obstructive sleep apnea during service. While not all of the Veteran's service treatment records are of record, as mentioned above, the ones that are of record show that the Veteran was not diagnosed with sleep apnea during service. For example, Reports of Medical History from December 1981, February 1982, and July 1990 show that the Veteran specifically denied frequent trouble sleeping. Furthermore, the December 1981, February 1982, November 1983, and July 1990 Reports of Medical Examination shows that the clinical evaluations of the Veteran's lungs and chest, nose, sinuses, and mouth and throat were all normal. Furthermore, a July 1996 Medical Evaluation Board (MEB) documents that the Veteran had a history of chronic low back pain. The MEB documents that the Veteran had a garage door fall on him in September 1995, striking him at the base of his neck and left shoulder region. The Veteran sustained injuries to his low back, neck, and a fracture of his left tibia. Following the September 1995 incident, the Veteran did not complain or was treated for sleep apnea. Thus, the preponderance of the evidence is against a finding that the Veteran had obstructive sleep apnea during service, and the facts do not establish the second element of a service-connection claim. As to a nexus between the current disability and service, the Veteran first reported periods of sleep apnea in September 2009, which is more than 27 years following service discharge and this is evidence that weighs against a finding that sleep apnea had its onset in service. The Veteran was afforded a VA examination in November 2019. Following the examination, the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated that the Veteran was diagnosed with obstructive sleep apnea in 2010 at the age of 48. The examiner noted the Veteran was at risk for this due to obesity at the time according to the available medical records and had been experiencing snoring and unrefreshing sleep. The examiner wrote that in UpToDate, under "Clinical Presentation and Diagnosis of Obstructive Sleep Apnea in Adults," the estimated prevalence of obstructive sleep apnea in North America is approximately 15 to 30 percent in males and 10 to 15 percent in females, when obstructive sleep apnea is defined broadly as an apnea-hypopnea index (AHI) greater than five events per hour of sleep. The examiner also noted there are several clinical risk factors associated with obstructive sleep apnea including: (1) older age -- the prevalence of obstructive sleep apnea increases from young adulthood through the sixth to seventh decade, then appears to plateau; (2) male gender -- obstructive sleep apnea is approximately two to three times more common in males than females; (3) obesity - the risk of obstructive sleep apnea correlates well with the body mass index (BMI). In one study, a 10 percent increase in weight was associated with a six-fold increase in risk of obstructive sleep apnea. In another study, moderate to severe obstructive sleep apnea was present in 11 percent of men who were normal weight, 21 percent who were overweight, and 63 percent of those who were obese. Thus, according to the study above, nearly two-thirds of men with obesity, such as the Veteran at the time of diagnosis will have obstructive sleep apnea. Obesity is a major risk factor for obstructive sleep apnea through multiple mechanisms, including decreased lung volume, increased soft tissue volume, and potential impairment of the mechanical output of UA muscles. The examiner wrote the prevalence of obstructive sleep apnea is also increased in patients with a variety of medical conditions, including hypothyroidism. The examiner noted the Veteran was diagnosed with hypothyroidism in 1995 following successful treatment for papillary thyroid cancer, about 15 years before his diagnosis of sleep apnea. The examiner further noted the Veteran reported a history of snoring, which he wrote is a very common occurrence in persons regardless of sleep apnea. The examiner added that, as noted in JAMA, "The complaint of snoring, while common in patients with obstructive sleep apnea, was found to have no predictive value." The JAMA study found no predictive value of snoring in the diagnosis of sleep apnea. The examiner also found no evidence of obesity or significant overweight problems during service. In 1990, the Veteran's weight was recorded as 184 pounds versus 244 pounds at the time of his sleep study. Also, available records and statements are negative for other symptoms of sleep apnea. In addition, the Veteran himself completed a Report of Medical History on 1990. This document was also negative for any other symptoms or signs of sleep apnea, as was the physician's section of this document and the physical examination report. The medical records from 1998 shows some sleep problems; the Veteran reported he had "trouble sleeping both falling asleep and is awakened by his back or his leg." However, the examiner noted that this does not include any symptoms being present that are suggestive of obstructive sleep apnea. The examiner noted records in May 1998 stated that the Veteran had "trouble getting to sleep," which he wrote is not the sleep symptom in obstructive sleep apnea. Available medical records are negative for an injury that would cause obstructive sleep apnea. The Veteran's statement referenced some breathing symptoms and this dyspnea was documented in 1995, after the injury which led to a Medical Evaluation Board. Records from September 1995 state that the Veteran "noticed fleeting chest pain, which was associated with a nonproductive cough." The Veteran was ultimately diagnosed with acute bronchitis. The examiner's review of the service treatment records showed there was no indication of any chronic condition, respiratory or other condition, associated with or possibly contributing to sleep apnea. Additionally, the MEB history and physical from July 1996 is also negative for symptoms related to the injury that would indicate possible sleep apnea. For all of these reasons, the examiner found that the Veteran's obstructive sleep apnea is less likely than not incurred in or caused by the injury during service and is less likely than not to have originated during his period of active service or otherwise be etiologically related to his active service. In February 2021, an addendum VA opinion was sought following the receipt of additional service treatment records. The February 2021 examiner stated that it is less likely than not (less than 50 percent probability) that the Veteran's obstructive sleep apnea originated during his period of active service or is otherwise etiologically related to his active service. The examiner reviewed the Veteran's claims file, including all service treatment records, statements from the Veteran that he believes his sleep apnea started during his Air Force service "especially after the injuries received in September 1995 with the injury to the breathing diaphragm and other injuries," and the statement where he believes the sleep apnea could have started because he was less active resulting in weight gain. The February 2021 VA examiner stated that the Veteran's sleep apnea was diagnosed in 2010, after a sleep study and a CPAP titration study documented that sleep apnea was alleviated with use of CPAP. However, the Veteran declined CPAP treatment. The Veteran was obese with a BMI of 33 at the time of diagnosis. The examiner stated that obesity is the most significant risk factor for obstructive sleep apnea. The examiner cited tot medical literature from UptoDate to define obesity, which is a BMI greater than or equal to 30. The examiner noted it also reports that studies found that exercise programs added to diets with moderate to severe caloric restrictions have little additional effect upon weight loss. Studies have found that body weight decreased similarly in the diet alone group and the diet plus exercise group but did not decrease in the exercise alone or control groups. The examiner wrote that UptoDate states, "the frequency and intensity of exercise may explain why exercise does not improve weight loss above that achieved with calorie restriction." Weight gain is a direct consequence of calorie intake in excess of need. Very inactive people can be very thin and very active people can be very heavy, but ultimately calorie intake in excess of need or expenditure is what dictates obesity, not level of activity. The examiner stated that based on the medical literature, the Veteran's weight gain is more likely than not caused by excessive calorie intake and not due to a service-connected condition. The Veteran was 48 years old at the time of diagnosis; other risk factors for obstructive sleep apnea include older age and being a male. The examiner found no evidence in the Veteran's medical records between 1981-1983 or 1990-1999 of symptoms consistent with sleep apnea. The examiner wrote that according to American Sleep Apnea Association, about 90 million Americans suffer from snoring activity during sleep. Therefore, the later report of snoring alone by the Veteran cannot be diagnostic of sleep apnea. The only way to determine if someone has sleep apnea is to do a sleep study. Per the medical literature UpToDate, "snoring is far more common than obstructive sleep apnea. Therefore, even though most patients who have obstructive sleep apnea snore, most patients who snore do not have obstructive sleep apnea. Sleep apnea testing is the only way to distinguish snoring in association with obstructive sleep apnea from primary snoring." The examiner noted the Veteran's sleep study was not completed until 15 years after the injury reported in 1995 and 27 years after leaving active duty. The Veteran was seen for nonproductive cough, mild chest pain, low grade fever, slight increased shortness of breath at the emergency room in September 1995 and admitted for a workup because of a recent leg surgery and symptoms. A chest x-ray showed lungs were clear and well expanded, heart normal in size; and no acute changes were identified. His chest pain resolved within 24 hours and shortness of breath improved. He had a normal profusion lung scan. He was diagnosed with acute bronchitis. There is no objective evidence in the medical literature that acute bronchitis leads to sleep apnea. The February 2021 VA examiner reviewed all records of the injury reported in September 1995 and they are negative for any injuries that would cause obstructive sleep apnea. Based on all information above, the February 2021 VA examiner stated it is less likely than not that the Veteran's sleep apnea incurred in or was caused by military service or is otherwise etiologically related to his active service. The Board finds the November 2019 and February 2021 VA opinions highly probative, as the examiners addressed the relevant facts, which facts were accurate, and provided detailed rationales for the conclusions reached, which were based on a review of the evidence, medical principles, and medical literature. These probative VA opinions are evidence against a nexus between the Veteran's obstructive sleep apnea and service. The Veteran is competent to state that he experienced snoring and daytime tiredness while in service. However, to the extent that he attempts to assert that his obstructive sleep apnea had its onset in service, such assertion is afforded no probative value, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. To the extent the Veteran believes that his snoring in service is indicative of sleep apnea, the November 2019 examiner noted that snoring is a very common occurrence in persons regardless of sleep apnea. The examiner added that, as documented in JAMA, "The complaint of snoring, while common in patients with obstructive sleep apnea, was found to have no predictive value." The examiner wrote the JAMA study found no predictive value of snoring in the diagnosis of sleep apnea. Thus, based on the November 2019 examiner's opinion, the Veteran's snoring in service is not evidence of sleep apnea in service. At the present time, there is no competent evidence of a nexus between the Veteran's sleep apnea and service to weigh against the November 2019 and February 2021 VA examiners' opinions. Hence, while the evidence shows that the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence is against a finding that his current disability is related to a period of active duty. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection for obstructive sleep apnea is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.