Citation Nr: 21042514 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 13-31 364A DATE: July 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran's obstructive sleep apnea is not secondary to any of the Veteran's service-connected disabilities, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to February 1997. The above issue was remanded by the Board several times previously. Most recently, in March 2021, the Board remanded the above issue to obtain another VA opinion to determine the etiology of the Veteran's sleep apnea, which was obtained in April 2021. The Board is therefore satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Southwest Asia Service connection may be presumed for Persian Gulf Veterans' undiagnosed illnesses, medically unexplained chronic multisymptom illnesses, and any diagnosed illness that the Secretary of VA determines in regulations warrants a presumption of service connection. 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317. A chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms such as: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). Therefore, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as CFS, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Further, lay persons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or an injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); Stankevich v. Nicholson, 19 Vet. App. 470 (2006). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be established under the specific provisions applicable to Persian Gulf War Veterans. A Persian Gulf veteran is a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia Theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). Initially, the Board notes that the Veteran had service in Southwest Asia during the applicable period and meets the definition of a Persian Gulf War veteran. However, the Veteran has a diagnosed condition, obstructive sleep apnea, and, therefore, service connection for sleep apnea cannot be granted on a presumptive basis under the provisions of § 3.317. Therefore, the Board will consider below whether service connected for sleep apnea is warranted under either a direct or secondary basis. 1. Entitlement to service connection for obstructive sleep apnea is denied. The Veteran contends that his obstructive sleep apnea is related to his military service, either on a direct or secondary basis. At the outset, the Board acknowledges that the Veteran has a diagnosis of obstructive sleep apnea. See June 2011 sleep study. Therefore, the first element of service connection, a diagnosis, has been met. As to whether the Veteran's sleep apnea is directly related to his military service, the Veteran contends that he was exposed to toxins during his service in Southwest Asia. As the Board has already conceded his service in Southwest Asia, the second element of direct service connection, an in-service incurrence, has been met. As to a nexus, the February 2013 VA examiner indicated that the Veteran's obstructive sleep apnea was not caused by any toxic exposure the Veteran may have incurred during his service in the Southwest theater of operations. The examiner concluded by indicating that sleep apnea is usually due to a local phenomenon in the throat or pharynx that causes the airway to close off and limits breathing or due to the central process in the brain respiratory centers, and that there was no documentation of sleep apnea in the Veteran's service treatment records. In April 2021, the examiner similarly concluded that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that no chronic diagnosis was made for obstructive sleep apnea while on active duty; his symptoms were subjective only. The examiner noted that the available medical records do not note medical evaluations, treatment, or diagnosis for obstructive sleep apnea while on active duty. The available medical records noted a June 2011 sleep study that showed an interpretation of "severe obstructive sleep apnea". The available medical records do not note a diagnosis of obstructive sleep apnea while on active duty. The examiner noted that the Veteran is deemed competent to provide a history of his symptoms. The lay and buddy statements regarding the Veteran's symptoms were also considered. However, the Veteran is not capable of diagnosing the medical condition related to those symptoms. The examiner concluded that there is no objective medical evidence noted in the available medical records showing a link between the Veteran's current diagnosis of obstructive sleep apnea and the Veteran's time in military service. Therefore, the examiner concluded that a nexus has not been established. The Board finds the April 2021 opinion 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). Lacking a nexus on a direct basis, service connection for sleep apnea cannot be granted on a direct basis. As to whether there is any correlation regarding the Veteran's military service, obesity, and his sleep apnea, a July 1997 VA general medical examination indicates that the Veteran had a height and weight suggestive of being overweight. VA has determined that obesity is not a ratable disability for service connection or secondary service connection compensation purposes. However, obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. See VACOPGCPREC 1-2017 (Jan. 6, 2017). It was noted that, under 38C.F.R. §3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected and that "proximate cause" had been defined by Black's Law Dictionary, 213 (7th ed. 1999), as a "cause that directly produces an event and without which the event would not have occurred." More recently, in Walsh v. Wilkie, No. 18-0495 (Feb. 24, 2020), the Court again addressed the holding of VAOPGCPREC 1-2017 (Jan. 6, 2017) that obesity can constitute an "intermediate step" in showing secondary service connection, i.e., that service connection is warranted when a service-connected disability causes obesity that, in turn, causes another disability. GC opinions are binding on the Board but not on the Court. The Court held that, although VAOPGCPREC 1-2017 is silent as to aggravation, the Board must consider aggravation in this context, i.e., service connection is warranted when a service connected disability aggravates obesity which in turn aggravates another disability, consistent with 38C.F.R. §3.310(b), which provides for service connection for any increase in severity of a nonservice-connected disease or injury that is due to service-connected disease or injury. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). As such, VA must resolve: (1) whether a service-connected disability caused a Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. In a September 2020 opinion, in pertinent part, the VA examiner opined it is less likely than not (less than 50 percent probability), that any of the Veteran's service-connected disabilities aggravated the Veteran's "claimed obstructive sleep apnea/obesity." As the rationale for this opinion, the VA examiner reasoned that none of these disabilities are known to cause a worsening of upper airway obstruction; his medical records are silent for any documentation that points to any of [his] . . . service-connected disability aggravated his obesity." He also reasoned that the Veteran's obesity is just as likely caused by poor diet, genetics and lack of activity by choice. The April 2021 VA examiner concluded that there is a lack of sufficient objective medical evidence noted in the available medical records to confirm or support a conclusion that the Veteran's obesity was caused by a service-connected disability. The examiner noted that no chronic diagnosis was made for obesity while on active duty; his symptoms were subjective only. The examiner commented that the available medical records do not note medical evaluations or treatment for obesity while on active duty. Weight gain is often the result of a poor diet and a lack of physical activity or exercise. Eating too many highly processed foods and/or too many sugary foods can lead to weight gain. Also, a sedentary lifestyle can contribute to weight gain. Obesity is most commonly caused by a combination of excessive food intake and a lack of physical activity, which is a choice. Taking in more calories than you are burning can lead to weight gain. Weight gain is determined by genetic and metabolic factors, caloric intake, and caloric expenditure. While weight gain can be a risk factor of sleep apnea, the examiner noted that not everyone with obstructive sleep apnea is overweight and vice versa. Thin people can develop the disorder too. There are alternative methods of exercise, including recumbent bicycles and water-based aerobics that alleviate weight bearing and joint problems during exercise. Diet and nutritional practices can also be utilized to minimize weight gain. Lifestyle coaching and use of behavioral management techniques have also been found to be effective at preventing and/or treating obesity. The examiner acknowledged that the Veteran is deemed competent to provide a history of his symptoms. The lay and buddy statements regarding the Veteran's symptoms were also considered. However, the examiner concluded that the Veteran is not capable of diagnosing the medical condition related to those symptoms. There is a multifactorial etiology involved in the development of obesity. There is a lack of sufficient objective medical evidence noted in the available medical records to confirm or support a conclusion that the Veteran's obesity is associated with the Veteran's time on active duty. Therefore, the examiner concluded that a nexus has not been established. The Board finds the September 2020 and April 2021 VA opinions, taken together, regarding the Veteran's obesity probative, because they are 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). The April 2021 VA examiner also considered the Veteran's lay statements and his service treatment records suggesting he was overweight. Lacking an established link between the Veteran's obesity and his military service, service connection for sleep apnea cannot be granted due to obesity as an "intermediate step." As to the Veteran's contention that his sleep apnea is secondary to a service-connected disability, the Veteran testified that he had been informed by a health care provider that his obstructive sleep apnea was caused or aggravated by his hypertension and renal insufficiency. See December 2015 Transcript. As to a nexus, the February 2013 VA examiner diagnosed the Veteran with obstructive sleep apnea and indicated that the Veteran's obstructive sleep apnea was not caused by the Veteran's renal insufficiency. The April 2021 VA examiner also concluded that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected hypertension with chronic renal insufficiency. The April 2021 VA examiner also concluded that the Veteran's obstructive sleep apnea was less likely than not aggravated beyond its natural progression by service-connected condition. The examiner reasoned that the conditions of obstructive sleep apnea and hypertension with chronic renal insufficiency are not medically related. The examiner noted that obstructive sleep apnea is a separate entity entirely from the hypertension with chronic renal insufficiency and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. The available medical records noted a June 2011 sleep study that showed an interpretation of "severe obstructive sleep apnea." According to the American Sleep Apnea Association, obstructive sleep apnea, or OSA, arises from what is basically a mechanical problem. It is complete or partial upper airway obstruction during sleep. During sleep, the tongue falls back against the soft palate, and the soft palate and uvula fall back against the back of the throat, effectively closing the airway. In turn, when the sleeper expands the chest to inhale, no air enters the lungs. It is characterized by snoring and interruptions in breathing during sleep with symptoms such as brief paroxysmal nocturnal dyspnea, choking during sleep, nocturia along with daytime sleep, depression, and memory loss. OSA can lead to debilitating daytime sleepiness, morning headaches, depression, and a general sense of unwellness. At present, OSA is diagnosed by polysomnography or a sleep study. The examiner acknowledged that the Veteran is deemed competent to provide a history of his symptoms. The lay and buddy statements regarding the Veteran's symptoms were also considered. However, the examiner noted that the Veteran is not capable of diagnosing the medical condition related to those symptoms. The available scientific and objective medical evidence does not support a conclusion that obstructive sleep apnea is associated with hypertension with chronic renal insufficiency. Therefore, the examiner concluded that there is no established causal link for obstructive sleep apnea due to or the result of hypertension with chronic renal insufficiency. The examiner also concluded that there is no objective medical evidence noted to confirm or support a conclusion that the Veteran's obstructive sleep apnea was aggravated beyond its natural progression by his service-connected hypertension with chronic renal insufficiency. As such, the examiner concluded that a nexus has not been established. As to whether the Veteran's sleep apnea was secondary to any of the Veteran's other service-connected conditions, in a September 2020 opinion, in pertinent part, the VA examiner opined it is less likely than not (less than 50percent probability), that any of the Veteran's service-connected disabilities aggravated the Veteran's "claimed obstructive sleep apnea/obesity." As the rationale for this opinion, the VA examiner reasoned that none of these disabilities are known to cause a worsening of upper airway obstruction; his medical records are silent for any documentation that points to any of [his]... service-connected disability aggravated his obesity." He also reasoned that the Veteran's obesity is just as likely caused by poor diet, genetics and lack of activity by choice. In addition the April 2021 VA examiner concluded that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of or aggravated beyond its natural progression by the Veteran's following service-connected conditions: painful and unstable right knee surgical scar, left knee patellar tendonitis, patellar tendon repair, right knee, and tinnitus. The examiner reasoned that sleep apnea and the Veteran's service-connected conditions are not medically related. The examiner noted that obstructive sleep apnea is a separate entity entirely from the above service-connected conditions and unrelated to them. The examiner noted that a thorough review of the medical literature failed to demonstrate a causal relationship between sleep apnea and these service-connected conditions. The available medical records noted a June 2011 sleep study that showed an interpretation of "severe obstructive sleep apnea." According to the American Sleep Apnea Association, obstructive sleep apnea, or OSA, arises from what is basically a mechanical problem. It is complete or partial upper airway obstruction during sleep. During sleep, the tongue falls back against the soft palate and the soft palate and uvula fall back against the back of the throat, effectively closing the airway. In turn, when the sleeper expands the chest to inhale, no air enters the lungs. It is characterized by snoring and interruptions in breathing during sleep with symptoms such as brief paroxysmal nocturnal dyspnea, choking during sleep, nocturia along with daytime sleep, depression, and memory loss. OSA can lead to debilitating daytime sleepiness, morning headaches, depression, and a general sense of unwellness. At present, OSA is diagnosed by polysomnography or a sleep study. The examiner acknowledged that the Veteran is deemed competent to provide a history of his symptoms. The lay and buddy statements regarding the Veteran's symptoms were also considered. However, the examiner noted that the Veteran is not capable of diagnosing the medical condition related to those symptoms. The available scientific and objective medical evidence does not support a conclusion that obstructive sleep apnea is associated with a painful and unstable right knee surgical scar, left knee patellar tendonitis, patellar tendon repair, right knee, and/or tinnitus. The examiner therefore concluded that there is no established causal link for obstructive sleep apnea and any of the Veteran's service-connected conditions. The examiner concluded that a nexus has not been established. The Board finds the September 2020 and April 2021 VA opinions, taken together, addressing secondary service connection, probative, because they are 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). Lacking a nexus between the Veteran's obstructive sleep apnea and any of his service-connected conditions, to include chronic renal insufficiency, the Board finds that that service connection for sleep apnea is not warranted on a secondary basis. Given the above, the Board finds that service connection for sleep apnea is not warranted, and the claim is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.