Citation Nr: 22018399 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-57 661 DATE: March 29, 2022 ORDER Service connection for obstructive sleep apnea (OSA) is denied. Service connection for prostate disability, to include benign prostatic hypertrophy (BPH), is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that OSA began during active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran has a prostate disability that began during active service or is otherwise related to an in-service injury or disease, to include alleged exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for prostate disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to September 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board then remanded the claims in May 2021 and December 2021 for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for OSA. 2. Entitlement to service connection for prostate disability, to include BPH. Issues 1-2. The Veteran, and his representative, contends that his disabilities had their onset in, or are related to, service. Specifically, the Veteran argues that symptoms of his disabilities manifested in service and was, subsequently, diagnosed post-service. In the alternative, the Veteran also argues that his prostate disability is related to in-service exposure to herbicide agents while stationed in Korea. The Board concludes that the evidence of record persuasively weighs against finding that the Veteran's OSA began during service or is otherwise related to an in-service injury or disease. The Board also concludes that the evidence of record persuasively weighs against finding that the Veteran has a prostate disability that began during service or is otherwise related to an in-service injury or disease, to include alleged exposure to herbicide agents. 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). VA laws and regulations provide that, if a veteran was exposed to herbicide agents during active service, certain enumerated diseases shall be presumptively service-connected even where there is no record of such disease during service. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.309(e). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Under the Blue Water Navy Vietnam Veterans Act of 2019, the relevant period of service was expanded to September 1, 1967, through August 31, 1971. See 38 U.S.C. § 1116B; see also Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 3, 133 Stat. 966, 970 (eff. Jan. 1, 2020). Initially, the Board observes that a May 2021 Board decision found that the Veteran was not exposed to herbicide agents. In support of this conclusion, the decision observed that a Defense Personnel Records Information Retrieval System response found no documentation of Agent Orange at Camp Page, Korea, or that unit members had military duties that would show exposure at the Korean DMZ. Further, while the Veteran has generally contended that he was exposed to herbicide agents in service, he, however, has not provided specific evidence of in-service exposure and the record does not reveal such exposure. The Veteran additionally has not been shown to be competent to identify chemicals, to include herbicide agents, by sight, touch, or any other of his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also 38 C.F.R. § 3.159(a)(2). A layperson's generalized assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Nevertheless, although in-service exposure to herbicide agents is not conceded, the Veteran is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the evidence of record, service treatment records (STRs) do not reveal that the Veteran reported symptoms or signs related to OSA or a prostate disability. Indeed, a review of his STRs is negative for treatment or complaints related to his OSA or prostate disability. For instance, in-service examination report, dated in May 1973, reveals that the Veteran was assessed as having a clinically normal nose, sinuses, mouth, throat, abdomen, and viscera. The summary of defects and diagnoses reveals no annotations of symptoms or signs related to OSA or a prostate disability. After examination, the Veteran was found to be qualified for present duty. Similarly, a corresponding report of medical history does not reveal signs or symptoms for OSA or a prostate disability. In this regard, in the corresponding report of medical history, the Veteran denied having, or previously having, frequent or painful urination. Although he reported having, or previously having, frequent trouble sleeping, the report of medical history does not show that the clinician related the complaint to OSA. A September 1973 statement of medical condition shows that the Veteran reported no change in his medical condition following the May 1973 examination. Indeed, the statement reveals that the Veteran did not report any changes to his medical condition. Post-service medical records reveal that the Veteran reported adequate sleep. In this regard, treatment records, dated in 2010 and 2011, overall reflect that the Veteran reported not having trouble falling or staying asleep. In May 2012, the Veteran reported an onset of symptoms of body twitching and irritability, which he first noticed in February 2012. He additionally reported that he experienced similar symptoms while on active duty. The Veteran was referred to a sleep lab; he subsequently underwent a sleep study and was diagnosed with mild OSA in August 2012. Treatment records, dated afterwards, continue to show complaints and treatment related to OSA. Next, with regard to the Veteran's prostate disability, treatment record, dated in February 2010, overall shows that the Veteran had a normal size prostate gland. Although treatment record, dated in April 2007, reveals that his prostate was moderately enlarged, subsequent evaluations show that it was found to be of normal size. In December 2011, the Veteran reported a 45-day history of straining and pressure while urinating, delayed onset of urinating, and weaker stream of urine. Examination found that the Veteran had an enlarged prostate, no masses or nodules, and no direct tenderness. He was assessed with likely BPH and started on Finasteride. In May 2012, the Veteran reported obstructive urinary symptoms with an onset date of one year prior. He additionally reported intermittent pain in the rectum since January 2012. Treatment records, dated afterwards, continue to show complaints and treatment related to the Veteran's prostate. Private examination report, dated in September 2012, reflects a diagnosis for OSA. The reported medical history shows that the Veteran reported a history for OSA and that a sleep study confirmed OSA. VA examination report, dated in August 2021, reflects a diagnosis for OSA. The reported medical history shows that the Veteran reported that he experienced an onset of disturb sleep in 2002. The report also shows that the Veteran reported that his spouse informed him that he snored loudly at night. VA examination report, dated in January 2022, reflects a diagnosis for BPH with an onset date of December 2011. The reported medical history shows that the Veteran reported an onset of difficulty urinating between 2008 and 2009. VA medical opinion and addendum opinion, both dated in January 2022, reflect the conclusion that the Veteran's OSA is less likely than not incurred in or caused by in-service injury, event, or illness. VA medical opinion, also dated in January 2022, reflects the conclusion that the Veteran's prostate disability is less likely than not incurred in or caused by in-service injury, event, or illness. The Board finds the VA medical opinions of high probative value. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a medical professional provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board finds the medical opinions of high probative value for the following reasons: The medical opinions are based on sufficient facts and data (e.g., the Veteran's lay statements, in-service and post-service medical records); the medical opinions are the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez, 22 Vet. App. at 302 (citing to Federal Rules of Evidence on expert witnesses). Further, the medical opinions contain clear conclusions with supporting data, and also a reasoned medical explanation connecting the two. Id. at 301. The opinions moreover do not base the conclusions solely on a lack of contemporaneous medical records but considered all of the evidence of record. Indeed, the opinions cite, reference, and discuss multiple pieces of medical and lay evidence in the claims file. Although the claims file is not a "magical or talismanic set of documents," Id. at 303, it provides critical pieces of information that can lend credence to the opinions. Id. at 304. The opinions taken as a whole are supported by a well-reasoned rationale, importantly consistent with the other evidence of record as addressed throughout the Veteran's appeal. Each potential pathway to service connection has been addressed in the opinions. The opinions, moreover, fully explained why the clinician disagreed with the Veteran's theories of causation and provided a discussion of the relevant and significant medical history, clinical findings, and medical knowledge. For example, in finding that the Veteran's OSA did not have its onset in service or was related to an in-service injury or disease, the opinion notes the Veteran's advancing age, specifically observing that he was diagnosed with OSA at age of 60. In support of this medical finding, the opinion cites and discusses relevant medical literature finding that blockage of the airway is commonly noted with advancing age, male gender, and weight/obesity. This finding is consistent with the Veteran's in-service and post-service medical records because, as noted above, the Veteran's May 1973 in-service examination report reveals a clinically normal evaluation of the nose, sinuses, mouth, and throat. Indeed, the in-service examination report furthermore demonstrates that he did not report, or was found not to have, any defects or diagnoses related to signs or symptoms for OSA, such as abrupt awakenings accompanied by gasping or choking. Furthermore, in finding the Veteran's prostate disability as less likely than not related to service, the opinion took into account the Veteran's reported dysuria and found that it was not consistent with a prostate issue. The opinion then notes relevant medical literature finding symptoms of BPH, to include signs of obstruction, not typically a pain, but more hesitancy, and dribbling. The opinion also observed that BPH is noted in 1/4 of men by the age of 55 and 1/2 of men by the age of 75; the Veteran was 59 at the time of diagnosis and started experiencing symptoms at the age of 56. In consideration of the above, the medical opinions show that the clinician found the Veteran's contention that his disabilities stemmed from service were not supported by his history and clinical picture, explaining such with reference to specific clinical information. The Board, thus, finds the VA medical opinions of high probative value as they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Furthermore, there are no competing medical opinions of record. Accordingly, the Board finds that the VA medical opinions are dispositive of the issues at hand. The Board finds the Veteran is competent to report signs and symptoms of his OSA and prostate disability. However, the Board finds that he is not competent to opine on the etiology of his symptoms, especially given that no chronic condition is noted in service, and because he lacks the requisite medical expertise to formulate a medical opinion on whether his OSA or prostate disability had its onset in service or is otherwise related to an in-service injury or disease. These are complex medical determinations, involving several variables (such as age, body mass, and other health conditions) that is beyond the ken layperson as it requires an understanding of body anatomy, physiology, and a knowledge of disease processes and their causes. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n.4 (Fed. Cir. 2007). For instance, a diagnosis for OSA generally requires examination by a trained medical professional and a referral to a sleep specialist for further evaluation. Therefore, as the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for either disability, his medical opinion in these matters has no probative value. Nevertheless, even if the Board was to find the Veteran's statements of record as acceptable competent evidence sufficient to establish service connection for his disabilities, the Board gives more probative weight to the VA medical opinions because the medical professional is shown, through the comprehensiveness and detailedness of the medical opinions, to have possessed the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinions are also shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation as to why the Veteran's current disabilities are not related to service. The opinions, moreover, reflect a reasoned medical explanation with consideration of lay statements, and relevant in-service and post-service medical records. Given the above, the competent, credible, probative evidence of record persuasively weighs against finding that the Veteran's OSA began during service or is otherwise related to an in-service injury or disease. Further, the competent, credible, probative evidence of record persuasively weighs against finding that the Veteran has a prostate disability that began during service or is otherwise related to an in-service injury or disease, to include his alleged exposure to herbicide agents. The Board assigns greater probative value to the Veteran's in-service and post-service medical records, which contain no objective finding for any chronic sleep apnea disability or prostate disability until decades after separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board additionally assigns greater probative value to the VA medical opinions than to the Veteran's uncorroborated medical opinion because, as mentioned above, the medical opinions were prepared by a trained medical professional, reflects a review of the claims file and cites to specific information in the claims file. Moreover, the opinions are probative because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. It is clear from the medical opinions that the clinician reviewed the Veteran's claims file and considered the subjective complaints of the Veteran. Also, the medical opinions are supported by a rationale that the Board can use to weigh against the other evidence of record. On balance, the weight of the evidence is against the claims. Accordingly, the claims are denied. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.