Citation Nr: 22010682 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-55 015 DATE: February 24, 2022 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for a lung condition is denied. FINDINGS OF FACT 1. The competent evidence does not demonstrate that obstructive sleep apnea is attributable to the Veteran's active service or any incident of service, to include as due to a service-connected disability. 2. The competent evidence does not demonstrate that the Veteran currently has a diagnosable lung condition or has had the condition at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 2. Service connection for a lung condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to September 1970, during November 1990, and from February 2002 to February 2003, with additional service in the Reserves. The Board also notes that the Veteran had verified service in the Republic of Vietnam during the Vietnam War era. This matter was last before the Board in August 2021, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a December 2021 supplemental statement of the case continuing the denial of service connection for both claimed issues, the case was returned to the Board for its adjudication. In reviewing the post-remand development, the Board would point out that the VA examination and opinion reports of record, considered as a whole, reflect well-reasoned and supported conclusions based upon both a claims file review and a physical examination of the Veteran. The Board can identify no deficiencies in this regard that would warrant another remand for corrective action. As a reminder, the Veteran testified at a September 2019 videoconference hearing before the Board. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). 1. Obstructive Sleep Apnea The Veteran seeks service connection for obstructive sleep apnea, which he contends is directly attributable to service. In the alternative, he asserts that the condition is secondary to his service-connected diabetes mellitus, type II. The question for the Board is whether the Veteran has obstructive sleep apnea that began during service or is at least as likely as not related to an in-service injury, event, or disease. In the alternative, the question for the Board is whether the Veteran's obstructive sleep apnea was proximately caused by or aggravated by a service-connected disability, namely, diabetes mellitus, type II. The Board concludes that, while the Veteran has been diagnosed with obstructive sleep apnea, the evidence is persuasively against a finding that the condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include as secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.310. To begin, a review of the Veteran's service treatment records does not show any documented treatment for or diagnosis of obstructive sleep apnea. None of the periodic examinations afforded to the Veteran during his various periods of service reflect any documented history of sleep apnea symptomatology or treatment for the same. Post-service, a July 2015 sleep study report shows that the Veteran reported a 30-year history of experiencing sleep difficulties and furthermore related that his spouse complained of his snoring and restless sleep patterns. A polysomnography study resulted in a diagnosis of obstructive sleep apnea. The Veteran submitted a November 2016 sleep apnea disability benefits questionnaire prepared by a Dr. J.M., wherein it was confirmed that the Veteran was first diagnosed with obstructive sleep apnea in July 2015 based on the results of a sleep study. Dr. J.M. did not opine as to the likely etiology of the condition. In a November 2016 correspondence, the Veteran's treating physician, a Dr. P.G., opined that it was at least as likely as not that the Veteran's sleep apnea was secondary to his diabetes mellitus, type II. Dr. P.G. did not offer a rationale for this opinion. During the September 2019 hearing, the Veteran reiterated that his treating physician, a Dr. P.G., had already provided a positive etiology opinion linking his obstructive sleep apnea to the service-connected diabetes mellitus, type II. The etiology of the claimed obstructive sleep apnea was first evaluated in January 2021 pursuant to the Board's prior remand instructions. After an in-person examination and review of the claims file, the examiner confirmed that the Veteran had diagnosed obstructive sleep apnea based on the results of a July 2015 sleep study. The examiner noted that the Veteran was not compliant with his use of a prescribed continuous positive airway pressure machine. In a separate opinion form, the January 2021 examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea was incurred in service or it otherwise attributable to service. In support thereof, the examiner noted the lack of treatment for or diagnosis of obstructive sleep apnea in service or during periods of reserve duty, and highlighted that the Veteran was not diagnosed with the condition until 2015, several years after his discharge from his most contemporary period of service. Following the Board's most recent remand, the claims file was provided to a new VA examiner in November 2021 in order to elicit a more robust opinion addressing the likelihood that the obstructive sleep apnea was secondary to a service-connected disability, namely, diabetes mellitus, type II. In answering in the negative, the chosen VA examiner first reiterated that sleep apnea was less likely than not incurred in service as demonstrated by the lack of a diagnosis in service and for over 45 years after the Veteran's most substantial period of service. Although the examiner acknowledged the Veteran's subsequent periods of service following his first tour of duty that ended in 1970, he noted that it would be highly unlikely for sleep apnea to develop during such short periods of service as the condition is the result of pathophysiological changes that occur gradually. As for the question of potential secondary etiology, the November 2021 examiner noted that there was no pathophysiological or anatomical relationship between obstructive sleep apnea and any of the Veteran's service-connected disabilities, to specifically include diabetes mellitus, type II. The examiner further highlighted that there was no evidence of the obstructive sleep apnea increasing in severity during the appeal period following the initial diagnosis in July 2015. Accordingly, the examiner concluded that there was no objective evidence of aggravation of the obstructive sleep apnea beyond its natural course due to any cause. Although the Board remanded this matter in order to secure an opinion that properly addressed the potential secondary etiological connection between obstructive sleep apnea and the Veteran's service-connected disabilities, this does not render the prior January 2021 opinion obsolete. Indeed, the Board finds that opinion highly probative as to the question of direct service connection etiology, in light of the January 2021 examiner's in-person examination of the Veteran and thorough review of the claims file. Sklar v. Brown, 5 Vet. App. 140 (1993). Similarly, the Board finds highly probative the November 2021 VA examiner's opinion as to secondary service connection, as he thoroughly reviewed the claims file and referred to both the Veteran's medical history as well as his own medical expertise in finding that it was less likely than not that the obstructive sleep apnea was proximately caused by or aggravated by a service-connected disability. Id. Upon consideration of the record, the Board finds that the evidence is persuasively against a determination that the Veteran's obstructive sleep apnea is attributable to service. To begin, there is no documentation of diagnosed obstructive sleep apnea in service or chronicity of care to suggest that such a diagnosis would have been appropriate. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, as stated the Board finds highly probative the opinion of the January 2021 VA examiner, who confirmed the lack of in-service treatment for obstructive sleep apnea and noted the long period of time between the Veteran's discharge from service and his diagnosis of obstructive sleep apnea in July 2015. There is simply no competent and objective medical evidence to support that obstructive sleep apnea first diagnosed several years after the Veteran's discharge is related to service. Accordingly, service connection on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. The Veteran may still be entitled to service connection for obstructive sleep apnea pursuant to his alternative theory of the condition being secondary to a service-connected disability. As detailed above, secondary service connection is based on either demonstrating that the condition at issue was proximately caused by a service-connected disability or that it was aggravated due to an underlying service-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. Here, the highly probative opinion of the November 2021 VA examiner is contrasted by the Veteran's contentions as well as the November 2016 correspondence from the Veteran's treating physician, Dr. P.G. Where there are conflicting medical opinions in the claims file, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner's opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D'Aires v. Peake, 22 Vet. App. 97 (2008). Although Dr. P.G. did note that he was the Veteran's treating physician, he offered no rationale whatsoever to support his opinion that it was at least as likely as not that the obstructive sleep apnea was secondary to diabetes mellitus, type II. Without any further detail to help substantiate that opinion, the Board finds that it provides little probative value. Moreover, it is far outweighed by the November 2021 VA examiner opinion to the contrary, which the Board has already established as being highly probative in its own right. Other than the November 2016 correspondence from Dr. P.G., the Veteran has not offered any objective supporting medical evidence or any other rationale for his belief that his obstructive sleep apnea was proximately caused by and/or is aggravated by a service-connected disability. His contentions are contradicted by the highly probative November 2021 examiner opinion, which provided a rationale that discussed how obstructive sleep apnea develops and noted that there was no known medical association between these underlying processes and any of the Veteran's service-connected disabilities. In addition, the November 2021 examiner correctly noted that there was no documentation of a worsening of the obstructive sleep apnea, further substantiating the determination that none of the service-connected disabilities had actually resulted in an increase in disability. The Board also highlights that the Veteran as well as his spouse lack medical training and credentials, needed for their contentions to be competent in nature. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, as there is no competent evidence in the record that supports the Veteran's contention that his obstructive sleep apnea was proximately caused by or is aggravated by his service-connected disabilities, the Board finds that the evidence is persuasively against a determination that service connection is warranted for obstructive sleep apnea as secondary to a service-connected disability. The Veteran may still be entitled to service connection if all of the evidence establishes that obstructive sleep apnea was incurred in service. 38 C.F.R. § 3.303(d). Here, however, there is no evidence of incurrence in service, and again there is a several-year gap between discharge and when the Veteran first sought treatment for symptoms of obstructive sleep apnea. He has not presented, and the claims file does not otherwise contain, any medical evidence supporting a causal link between obstructive sleep apnea and his service. Furthermore, the assertion of the Veteran and his spouse that his obstructive sleep apnea manifested as a result of service is outweighed by the opinions of the various VA examiners, as both he and his spouse lack the medical training and credentials needed for a competent nexus opinion. Without any competent evidence in support of the claim to outweigh the probative negative etiology opinions of record, the Board finds that the evidence is persuasively against a determination that a medical nexus exists between the Veteran's obstructive sleep apnea and an in-service injury, event, or disease. Service connection for obstructive sleep apnea under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim of entitlement to service connection for obstructive sleep apnea in total must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the evidence is persuasively against the Veteran's claim of service connection, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Lung Condition The Veteran seeks service connection for a lung condition, which he contends is attributable to his presumed exposure to toxic herbicide agents while in service in the Republic of Vietnam. In the alternative, he contends that he has a lung condition which is secondary to several of his service-connected disabilities as well as secondary to his separately claimed but non-service connected obstructive sleep apnea. Without delving into the question of the potential etiology of the claimed lung condition, the Board finds that the Veteran has never been diagnosed with a lung condition during the pendency of the appeal, and there is insufficient evidence to suggest that such a diagnosis is appropriate. Accordingly, entitlement to service connection must be denied. During the appeal period, pursuant to the Board's prior remand instructions, the nature and likely etiology of the claimed lung condition was evaluated in a January 2021 respiratory condition examination, during which the Veteran reported that he began experiencing shortness of breath around 2010 when he was being treated for a heart condition. According to the Veteran, he was diagnosed with asthma at this time; however, he acknowledged that he was not currently receiving treatment for asthma. The Veteran further detailed that he experienced shortness of breath walking up stairs or following exertion. After a review of the claims file, to include a July 2014 chest x-ray that was negative for any acute process, the examiner declined to endorse a diagnosis of a lung condition. The examiner specifically dismissed the Veteran's assertion that he was previously diagnosed with asthma, as there was no evidence of such a diagnosis in the available medical records and no evidence of current asthma symptomatology. Pursuant to the Board's most recent remand instructions, the claims file was provided to a new VA examiner, who issued a November 2021 opinion report confirming that the Veteran did not have a diagnosable lung condition. In support thereof, the examiner acknowledged the Veteran's reported experience of shortness of breath but attributed this to his separately diagnosed cardiac conditions and not a symptom of a separately diagnosable lung condition. The examiner also dismissed the validity of the purported asthma diagnosis as it was not substantiated by testing for pulmonary function and was not continued throughout the Veteran's medical history following the diagnosis. The Board does acknowledge that it requested an addendum to the January 2021 lung condition examination in light of noted evidence that potentially suggested that there was a diagnosable lung condition, namely, private medical records from 2011 reflecting that the Veteran reported experiencing shortness of breath. The fact that the Board remanded this matter does not necessarily reduce the probative value of the January 2021 examination, however, as the examiner did undertake a thorough review of the claims file and examined the Veteran in-person. Moreover, the November 2021 addendum opinion addressed the potentially positive evidence by highlighting that the shortness of breath symptomatology has been consistently attributed to the Veteran's separately diagnosed cardiac conditions. Therefore, as the two examiners thoroughly considered the claims file, and the November 2021 examiner provided a feasible alternative etiology for the shortness of breath symptomatology that accords with the evidence of record, the Board finds that together the examinations are highlight probative of the ultimately query as to whether the Veteran has a diagnosable lung condition. Sklar v. Brown, 5 Vet. App. 140 (1993). During the September 2019 hearing, when queried the Veteran asserted that he had a diagnosed lung condition. According to him he was followed for both his lung condition and his obstructive sleep apnea by the same physician, who informed him that both conditions were related. A review of available post-service medical records does not reflect any specific treatment for a lung condition. A July 2014 outpatient record shows that a chest-Xray was negative for any acute process; the listed indication for the procedure was dyspnea. During several regular evaluations through his private treating physician the examiner specifically denied any current or historical respiratory symptomatology. Under these circumstances, the Board concludes that there is insufficient evidence to support a determination that the Veteran has a diagnosable lung condition. Although the Veteran has competently and credibly attested to his experiencing respiratory symptomatology, there is no objective medical evidence which demonstrates that he has a diagnosable lung condition, other than his self-reported diagnosis of asthma which is not corroborated by the record. There is no documentation of the Veteran having undergone a formal pulmonary function evaluation to substantiate this diagnosis, and the diagnosis, or the etiology thereof, is not noted on any of the available post-service medical records. Furthermore, the Veteran's documented shortness of breath symptomatology has been fully accounted for by the separate diagnoses for cardiac conditions that he has carried for the entirety of the appeal period. The Veteran himself does not have the medical training or credentials to offer an opinion as to a diagnosis of lung condition or its etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, service connection for a lung condition is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.