Citation Nr: 21041090 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-19 589A DATE: July 8, 2021 ORDER Service connection for sleep apnea, to include as secondary to the service-connected Bells Palsy, is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of sleep apnea. 2. Sleep apnea was not incurred in service and is not etiologically related to active service. 3. Sleep apnea is not caused or worsened by the service-connected Bell's Palsy. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from March 1985 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision from the Regional Office (RO), which denied service connection for sleep apnea. In May 2019, the Veteran and his wife testified at a Board videoconference hearing from the RO in Nashville, Tennessee, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. In October 2019, the Board remanded the issue on appeal for additional development, including to obtain a VA medical opinion. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the October 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In this case, the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements were satisfied by way of the notice letter that was provided with the Fully Developed Claim. The VCAA duty to assist has been met in this case. The complete service treatment records and all identified post-service treatment records are associated with the record, a VA medical opinion was provided in December 2019 with adequate rationale. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Veteran is currently diagnosed with sleep apnea, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). Service Connection for Sleep Apnea is Denied. The Veteran contends that service connection for sleep apnea is warranted. Specifically, The Veteran has provided lay testimony and statements that he had symptoms of snoring, night sweats, daytime fatigue, gasping, sore throat, congestion, and incontinence during service, for which he sought treatment multiple times during service but was told he had a cold or upper respiratory infection. The Veteran asserts that he was not aware of the symptoms of sleep apnea during service, but he believes the symptoms were likely early symptoms of sleep apnea that were unknown to military physicians at the time because there was little known about the diagnosis and treatment of sleep apnea when he was in service. The Veteran also testified that he had Bell's Palsy in service with symptoms of face droop, inability to blink his eyelid and numbness and tingling in the face. The Veteran's wife testified that service treatment records reflect symptoms of hot flashes, night sweats, weakness, malaise and sore throat in October 1986, February 1986, and January 1987, which she has witnessed after service separation. The Veteran's spouse reported that the Veteran is a heavy snorer, and she first observed symptoms of snoring and interrupted breathing when she moved in with the Veteran in 2002 after they married. The Veteran's spouse testified that due to the heavy snoring she encouraged the Veteran to see a doctor. See May 2019 Board Hearing Transcript; October 2014, October 2020 correspondence. Initially, the Board notes that there is a current diagnosis of sleep apnea, as reflected in January 2007 and May 2013 sleep studies. See January 2007, May 2013 private treatment record. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding that the current sleep apnea was incurred in or is otherwise causally related to active service. The service treatment records are silent for symptoms or findings of sleep apnea during service. The Board has considered the Veteran's and lay reports that he experienced snoring, daytime fatigue, gasping for air during sleep, and night sweats/hot flashes, sore throat, and congestion during service, for which he sought treatment. However, a review of the evidence shows that the Veteran reported a cluster of symptoms during service that were diagnosed as viral infections and that the Veteran reported improvement in these symptoms with the treatment that was provided for the viral and upper respiratory infections, so were not in fact sleep apnea symptoms. Service treatment notes show that the Veteran presented on February 18, 1986 with symptoms of problems swallowing, hot flashes, aches and weakness which has been present for a week, and the diagnosis was viral syndrome. The Veteran was seen for follow up the next day and reported a one-week history of sore throat, malaise, sweating, and congestion. His tonsils were noted to be inflamed on exam; however, he reported some relief in symptoms upon starting aspirin and fluids 24 hours ago. Upon consideration of the symptoms reported and examination findings, diagnosis was influenza type syndrome. In October 1986 the Veteran presented with symptoms of head cold and productive cough for three weeks, but he denied sore throat. No diagnosis was rendered as the Veteran left the clinic before being seen. On January 13, 1987 the Veteran was seen for symptoms of night sweats, congestion and myalgia of three-day duration. The Veteran reported that all his symptoms had resolved that morning, but he continued to have bilateral ear block and mild sore throat. Diagnosis was viral upper respiratory syndrome, bilateral ear block, and external ear conal irritation. Three days later, the Veteran reported less congestion but indicated that his ears were still symptomatic. Diagnosis remained upper respiratory syndrome. The Veteran was also seen for cold, sore throat, fullness in his ears, and rhinorrhea in March 1987, which was diagnosed as probable upper respiratory syndrome and Eustachian Tube Dysfunction. See February 1986, October 1986, January 1987, March 1987 service treatment records. While service notes show reports of sore throat, malaise, and night sweats, these symptoms were reported with a cluster of symptoms including congestion, myalgia, productive cough, rhinorrhea, and fullness in the ears and were diagnosed and treated as viral and upper respiratory infections, with improvement in symptoms, so were not in fact sleep apnea symptoms. Service treatment records do not indicate that during service while seeking treatment for the cluster of symptoms that were diagnosed as symptoms of viral infections the Veteran reported any problems with snoring, sleep difficulties, difficulty breathing or gasping for air during sleep, or significant daytime fatigue. Service treatment records also indicate that the Veteran denied any significant interval medical history during subsequent flight examinations during service. See April 1987, February 1988 service treatment records. Post-service treatment records do not reflect a history of in-service symptoms of snoring, daytime fatigue, difficulty breathing during sleep, night sweats, sore throat, congestion, malaise, but reflect onset of these symptoms after service separation. Post-service treatment records are also silent for diagnosis or treatment for sleep apnea until many years after service separations. The record shows that the Veteran was treated for Bell's Palsy in 2001, but he specifically denied any health problems other than Bell's Palsy at that time. The record shows that severe sleep apnea was first diagnosed via sleep study in 2007, 18 years after service separation. At the time of the sleep study, the only history reported was snoring, sleepiness, and obesity, as the Veteran was 370.8 pounds with a body mass index (BMI) of 46.3. Unlike the symptoms reported during service, the Veteran did not report symptoms of night sweats, congestion, sore throat, productive cough, malaise, myalgia, rhinorrhea, or fullness in the ears, as symptoms of his condition during the 2007 sleep study. Additionally, weight loss was encouraged as it was known to improve snoring in overweight and obese individuals. While the Veteran was seen for evaluation and treatment of sleep apnea in January and May of 2013, those records are also silent for reported symptoms of sleep apnea that had been present during and since service separation. Such history for treatment purposes is highly probative as one is likely to present an accurate history in order to receive good medical care for the problem. See September 2011 VA treatment record, January 2007, January 2013, May 2013 private treatment records. The first time the Veteran reported problems with excessive fatigue during service was in June 2013, one month after submitting the May 2013 claim for service connection. Notably, the Veteran also reported a pre-service history of loud snoring as a child and periods of apnea since at least 13 years old, indicating an onset of symptoms of service snoring and apneas prior to service; therefore, continued snoring during service is not an indicator of onset of a sleep apnea symptom during service. See June 2013 private treatment record. The Board has considered the lay assertions of the Veteran, his wife, and friends that during service the Veteran had symptoms of snoring, night sweats, sore throat, daytime fatigue, malaise, congestion, gasping for air during sleep, and that they believe these symptoms are related the sleep apnea diagnosed years after service. As a lay person, the Veteran and his friends and family are competent to report any symptoms the Veteran experienced at any given time; however, under the specific facts of the case that show in-service reports of a cluster of symptoms including night sweats, malaise, myalgia or aches and weakness, sore throat, congestion, productive cough, full or blocked ears, rhinorrhea that were diagnosed and treated as viral infections; no in-symptoms reported of chronic symptoms of excessive snoring, difficulties with sleep, excessive daytime fatigue, or difficulties breathing or gasping for air while asleep during service; no diagnosis or treatment of sleep apnea during service; and no reports of sleep apnea symptoms, diagnosis, or treatment until 18 years after service, the Veteran and other lay persons do not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the Veteran's sleep apnea. The etiology of sleep apnea requires medical expertise and falls outside the realm of common knowledge of a lay person. The etiology of the Veteran's sleep apnea is a complex medical etiological question dealing with the origin and progression of the sleep disordered respiratory disease and is diagnosed primarily on clinical findings and physiological testing rather than observation by the five senses. For these reasons, the Veteran's and family and friends' unsupported lay opinions under the specific facts of this case are of no probative value. The Veteran provided opinions from Dr. Gallet. In an October 2014 statement, Dr. Gallet noted that a second sleep study performed in January 2013 revealed severe life-threatening obstructive sleep apnea (OSA). Dr. Gallet wrote that the Veteran apparently had sleep apnea for many years, noting that the Veteran reported a history of sleep apnea symptoms throughout service, to include waking up choking and gasping for air, episodes of urinary incontinence, and unexplained daytime fatigue, which the statement accepts as symptoms of sleep apnea. Dr. Gallet noted that sleep apnea is currently controlled with CPAP. See October 2014 private treatment record. In an April 2016 addendum opinion, Dr. Gallet wrote that he reviewed the service treatment records, in addition to the Veteran's recounts of inability to sleep with night sweats and incontinence on occasion during service. Dr. Gallet wrote that there are definite sleep apnea symptoms noted throughout the Veteran's medical record to include in February 1986 and January 1987. Dr. Gallet opined that it is more likely than not that the Veteran was experiencing sleep apnea during service. See April 2016 Correspondence. Although Dr. Gallet provided a positive opinion in support of the Veteran's claim, the opinion is not sufficient to grant service connection for sleep apnea. Dr. Gallet considered the Veteran's lay reports of sleep apnea symptoms during service, described as difficulty sleeping, night sweats, gasping for air and incontinence, and indicated that sleep apnea symptoms were noted in February 1986 and January 1987, but did not identify which of the cluster of symptoms reported were symptoms of sleep apnea. Additionally, Dr. Gallet does not explain why the cluster of symptoms reported in February 1986 and January 1987, which included hot flashes, sweating, sore throat, malaise, and congestion that had been present for one week in February 1986 and night sweats, congestion, myalgia for three days with bilaterally blocked ears and sore throat in January 1987, were symptoms of sleep apnea as opposed to the viral syndrome and viral upper respiratory infection that was contemporaneously diagnosed at that time by the treating service medical providers. Dr. Gallet also did not address why the treatment that was administered for these viral infections would be effective for a sleep apnea condition, when considering the fact that the Veteran reported improvement in and resolution of the episodic symptoms with the treatment administered for the viral infections. Moreover, Dr. Gallet does not reconcile that fact that the Veteran did not endorse chronic symptoms of snoring, excessive daytime fatigue, or difficulties breathing or gasping for air during service while seeking treatment for a cluster of other symptoms that the statement accepts as symptoms of sleep apnea. See February 1986, January 1987 service treatment records. These very significant factual oversights, which result in materially inaccurate factual assumptions, render the opinions of Dr. Gallet of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board does not reject the factually inaccurate history because it was presented to Dr. Gallet from the Veteran, but because it is a factually inaccurate history that is contrary to the weight of the lay and medical evidence of record as weighed and found by the Board. It is the factual accuracy of the history, not the source of the history, that the Board has considered in assessing the value of this medical opinion. In an April 2016 disability benefits questionnaire, Dr. Alsab wrote that the Veteran was diagnosed with severe sleep apnea in 2007, he had symptoms of sleep apnea for many years prior to that date, and more than likely had sleep apnea prior to that date. See April 2016 Disability Benefits Questionnaire. Dr. Alsab also noted that obesity is a pertinent physical finding related to the sleep apnea. Although Dr. Alsab indicates that the Veteran likely had symptoms of sleep apnea for years prior to diagnosis, Dr. Alsab does not relate the current sleep apnea, which was diagnosed 18 years after service, to active service, especially in the context of having identified the presence of (non-service-related) obesity. In an October 2016 statement, the Veteran asserted that he served from March 1985 to February 1989 around the same time that the initial trials for the CPAP machine were conducted. The Veteran contends that sleep apnea was in the beginning stages of diagnosis and treatment when he was in service and that symptoms, he experienced were not symptoms that were commonly known to be associated with sleep apnea. The article the Veteran submitted does not indicate that little was known about the symptoms and diagnosis of sleep apnea during the Veteran's service from March 1985 to February 1989. Instead the article indicates that the idea of treating sleep apnea with positive pressure through CPAP was first tested in 1980, five years before the Veteran entered service, as an alternative to more invasive surgical remedies. Additionally, by 1985 the CPAP had become commercially available with over 100 patients on longterm CPAP home therapy. See October 2020 correspondence. This article does not suggest that little was known about symptoms and diagnosis of sleep apnea. The article suggests that sleep apnea was a known diagnosis for which the medical community was testing more effective treatment via CPAP, five years before the Veteran entered service. A VA medical opinion was provided in December 2019. The VA examiner opined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner considered that Veteran's lay reports of symptoms such as difficulty sleeping, loud snoring, incontinence, gasping for air, night sweats, malaise, and sore throat during service, and reviewed the relevant service and post-service records. In terms of the presence of purported sleep apnea symptoms during service, the examiner explained that relating such symptoms to sleep apnea would require speculation as there is no diagnostic work up for sleep apnea secondary to these symptoms found in the available medical records. The examiner noted that at the time the Veteran was treated for these symptoms in service, the symptoms were deemed caused by a viral syndrome. Additionally, the symptoms reported are common symptoms in the general population and are not indicative of early manifestations of OSA, as OSA is a diagnosis with a clear and specific etiology and is characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. See October 2019 VA examination report. Moreover, the VA examiner in December 2019 reasoned that the mostly likely etiology of the Veteran's sleep apnea is the combination of his risk factors of obesity, male gender, craniofacial and upper airway abnormalities, and age. The examiner noted the Veteran's BMI at time of OSA diagnosis was 46. Per medical literature, obesity is the strongest risk factor for OSA, as the prevalence of OSA progressively increases as the BMI and associated markers (e.g. neck circumference, waist to hip ratio) increase. Further, studies have shown that even a 10 percent increase in weight was associated with a six-fold increase in risk of incident OSA, and that moderate to severe sleep apnea was present in 63 percent of obese individuals (i.e., BMI greater than 30). The VA examiner also noted that OSA is two to three times more prevalent in males and that age and craniofacial and upper airway abnormalities also increase the likelihood of OSA. (Continued on the next page) As for the theory of secondary service connection, the VA examiner in December 2019 opined its less likely than not that sleep apnea was proximately due to or aggravated beyond a natural progression by the service-connected Bell's Palsy. The examiner reasoned that these are separate and distinct medical conditions and unrelated to each other. Additionally, obstructive sleep apnea is a diagnosis with a clear and specific etiology, characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. The explained that risk factors such as obesity, male gender, craniofacial and upper airway abnormalities, and age are the mostly likely etiology of the Veteran's sleep apnea. When considered in light of the entire record, the Board finds the VA medical opinions to be highly probative, as they are supported by rationale that considers the Veteran's lay assertions in light of the medical literature, a review of the evidence as a whole, and the Veteran's other risk factors for sleep apnea. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current sleep apnea and active service or service-connected disabilities. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for sleep apnea on a direct, secondary, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.