Citation Nr: 21041324 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-58 809 DATE: July 8, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The preponderance of the evidence is against finding that OSA began during active service, or is otherwise related to an in-service injury or disease, or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA 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, who is the appellant, served on active duty from February 1989 to September 1996. In August 2019, a hearing was held before a Veterans Law Judge who is no longer a member of the Board. A transcript of the hearing is associated with the Veteran's claims file. The Veteran was offered the opportunity for a second hearing, but stated that he did not wish an additional hearing. See March 2020 Correspondence. In April 2020, the Board remanded this case for further development of the evidence. This was accomplished and the case has been returned for further appellate consideration. Entitlement to service connection for OSA The Veteran contends that service connection should be established for OSA. At the August 2019 Board hearing, he testified that his breathing problems began when he sustained a nasal fracture in service. He related that he told medics and doctors in service that he had these problems, but no treatment was prescribed. He related that fellow servicemen always complained about his sleep habits, including significant snoring. Alternatively, the Veteran contends that his OSA is related to exposure to burn pits while in service or as secondary to the nose fracture he sustained during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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 be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After review of the record, the Board concludes that, while the Veteran has a current diagnosis of OSA, and evidence shows that he did sustain a nasal fracture while on active duty, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of OSA began during service or is otherwise related to an in-service injury, event, or disease. Neither is it shown to be proximately due to or aggravated by a service-connected disability. Review of the Veteran's service treatment records (STRs) shows no complaints or manifestations of OSA. There is documentation related to the Veteran's nasal fracture in June 1994, which was treated that month with open reduction of the fracture. On examination in July 1996 for separation from service, the Veteran reported that he did not have, nor had he had, frequent trouble sleeping. Clinical evaluation of the nose, head, face, mouth, and throat were normal. Post-service treatment records show that the Veteran was shown on sleep study to have OSA in 2007. This was again demonstrated in VA treatment records dated in July 2014. An examination was conducted by VA April 2020. The diagnosis was OSA. Review of the records showed that X-ray studies of the sinuses were considered to be normal. Regarding direct service connection, the examiner opined that it was less likely than not that the OSA was incurred in or caused by a claimed in-service injury, event, or illness. The rationale included a reference to the nasal fracture with deviated septum in June 1994 for which he underwent a surgical repair. Records from 1996 and 2013 showed normal sinuses with no deviated septum. The examiner explained that OSA was described as an obstructive process of the naso-pharyngeal and oral-pharyngeal airway that caused physical obstruction in the airways. There was no evidence that the Veteran's nasal fracture and deviated septum during service caused any airway obstruction. Further, the open reduction resolved any residual issues with the airway passages that could have contributed to the development of OSA. Regarding the Veteran's testimony related to his problems sleeping, the examiner opined that this did not provide a basis to establish that the OSA was related to an in-service injury, event, or illness. The rationale was that the Veteran did not report having had problems sleeping on examination in 1996 and that physical examination regarding his nose and sinuses was normal. Regarding the contention that the OSA was related to exposure to " burn pits " during service, the examiner noted that the transcript of the Veteran's Board hearing included references to having been exposed to this without benefit of a mask. The examiner conducted a literature review and found that, at present, research had not established a clear connection between environmental exposures to burn pits in Southwest Asia and the development of OSA. Based on this, the OSA was less likely as not related to such exposure during service. Regarding the Veteran's contention that service connection for OSA was warranted as secondary to his nasal fracture residuals, the examiner found that a baseline of severity levels could not be established and that it was not at least as likely as not that the OSA was aggravated beyond the natural progression by a service-connected disability. The rationale was that the open reduction of the nasal fracture and deviated septum had resolved any residual airway obstructions. As such, it was less likely than not that the Veteran's OSA was aggravated beyond its natural progression by the deviated nasal septum with residuals of an open reduction internal fixation. As noted above, the relevant treatment records show the Veteran was not diagnosed with OSA until 2007, years after his separation from service. While the Veteran is competent to report having experienced snoring and sleeping symptoms in service and thereafter, he is not competent as a lay person to provide a diagnosis in this case or determine that these symptoms were manifestations of OSA. He is also not competent to opine as to the etiology of his currently diagnosed OSA. The issues involved in this case are medically complex, as they require knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the April 2020 VA examiner opined that the Veteran's OSA was not at least as likely as not related to an in-service injury, event, or disease, including the nasal fractures sustained during service, or his service-connected deviated septum with residuals of an open reduction internal fixation. The examiner's opinion is 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). This is the only medical opinion in the record and the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). (Continued on the next page) For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for OSA, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.