Citation Nr: 24015303 Decision Date: 04/09/24 Archive Date: 04/09/24 DOCKET NO. 19-28 790 DATE: April 9, 2024 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to chronic obstructive pulmonary disease (COPD) with lung cancer and chronic hypoxic respiratory failure is denied. FINDING OF FACT The Veteran's OSA was not incurred in active service and is not proximately due to or the result of a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy from November 1950 to August 1954. This matter comes before the Board of Veterans' Appeals (Board) following a decision issued in June 2018 by a Department of Veteran Affairs (VA) Regional Office (RO) which denied entitlement to service connection for sleep apnea, right and left hip pain, and chronic obstructive pulmonary disease (COPD) with lung cancer and chronic hypoxic respiratory failure. The Veteran filed a Notice of Disagreement in July 2018, and a Statement of the Case (SOC) was issued in August 2018. The Veteran filed VA Form 9 in September 2019. This appeal was previously before the Board in August 2021 when it was remanded for VA examinations and opinions. Unfortunately, the Veteran died in October 2021, and the Appellant is his surviving spouse, who has been recognized as a substitute in this appeal. In May 2021, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer with the Board. A transcript of that hearing has been associated with the record. In May 2023, the Appellant and other family members testified at a virtual Board hearing before the undersigned. A transcript of that hearing has also been associated with the record. The Board remanded the matters in July 2023 for further development. In a September 2023 rating decision, the AOJ granted the claims for service connection for COPD with lung cancer and chronic hypoxic respiratory failure, a right hip disability, and a left hip disability. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, those matters are no longer in appellate status. Law and Analysis In order to establish service connection for a present disability the claimant must show the existence of a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship or "nexus" between the present disability and the in-service injury or disease. Saunders v. Wilkie, 88 F.3d 1356, 1361 (Fed. Cir. 2018); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability resulting from a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability results from the service-connected disability. 38 U.S.C. §§ 1110, 1131; Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (holding that section 1110 "requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability"). The but-for causation standard in a secondary service connection case is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction. See Spicer, supra. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Law and Analysis The Appellant asserts that the Veteran was entitled to service connection for obstructive sleep apnea (OSA). In his March 2018 statement, the Veteran asserted his lung cancer and respiratory disabilities were due to toxic exposures while in service including coal, petroleum, nonskid coatings on ship decks, aluminum, titanium, and silicates. The Veteran and Appellant also contended that the now service-connected COPD caused or aggravated the Veteran's OSA. See October 2022 and March 2024 Appellate Briefs. The Appellant was granted service connection for COPD with lung cancer and chronic hypoxic respiratory failure in a September 2023 rating decision. The Veteran was diagnosed with OSA following a sleep study in 2002. See February 2019 VA Treatment Record. Therefore, the first element of service connection requiring a current disability has been satisfied. The question before the Board is whether the Veteran's OSA was caused or aggravated by an in-service event, injury, or disease including whether his service-connected COPD, lung cancer, and chronic hypoxic respiratory failure caused or worsened his OSA. The Board previously remanded this matter in August 2021 and July 2023 for further development. The July 2023 Board remand sought medical opinions addressing whether the Veteran's OSA was at least as likely as not caused by service and whether his OSA was caused by or resulted from his COPD, lung cancer, and/or hypoxic respiratory failure. Specifically, the remand directed the examiner to address whether the Veteran's sleep apnea would have been less severe but-for the COPD, lung cancer, and/or hypoxic respiratory failure, to include any worsening of functionality. A medical opinion was obtained in September 2023. The Board finds the September 2023 opinion substantially complies with the July 2023 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The September 2023 examiner opined that there was no nexus between sleep apnea and the Veteran's service and that it was less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of the Veteran's COPD, lung cancer, or chronic hypoxic respiratory failure. The examiner explained that OSA is characterized by recurrent obstruction of the pharyngeal airway during sleep, with resultant hypoxia and sleep fragmentation. The pathogenesis of OSA is due to the interaction between unfavorable anatomic upper airway (UA) susceptibility and sleep-related changes in UA function. The examiner had also indicated that she had reviewed the circumstances and events of the Veteran's military service and found no diagnosis of sleep apnea while the Veteran was in service. The examiner also indicated that OSA was not associated with the Veteran's other medical conditions. The Veteran was also examined in August 2022 where the examiner opined the Veteran's condition was less likely than not incurred in or caused by the claimed in-service event, injury, or illness. The rationale provided noted the Veteran's service treatment records do not reflect diagnosis or treatment for OSA and that a diagnosis of OSA was not rendered until 2002, many years after service. The Board's July 2023 remand found such an opinion inadequate as the examiner relied solely on the absence of a diagnosis or symptom in service as the basis for the negative opinion. It was also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Therefore, the August 2022 examination is afforded no probative weight. During the May 2021 Board hearing, testimony was not taken regarding the Veteran's OSA claim. However, during the May 2023 Board hearing, the Appellant and family members noted the Veteran had difficulty sleeping at night and would often fall asleep during the day. It was reported the Veteran "slept with one eye open" and that he had been unable to sleep while in service due to unsafe circumstances. The Board affords substantial probative weight to the September 2023 opinion as it is based on an accurate review of the claims file, to include the lay and medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the examiner provided a reasoned explanation for the opinion with clear conclusions. There is no medical opinion otherwise showing that the Veteran's sleep apnea was caused by or related to his service-connected COPD with lung cancer and chronic hypoxic respiratory failure. The Board has also considered the lay statements submitted in support of the claim. Those statements assert that the Veteran's OSA was related to his service and to his service-connected COPD. The Board acknowledges the Veteran was competent to report the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran's OSA, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset and the internal processes involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming the lay assertions regarding etiology are competent, the Board nevertheless finds that the specific, reasoned opinions of the September 2023 VA examiner are of greater probative weight than the general lay assertions in this regard. The examiner reviewed the claims file, considered the Veteran's own reported history and statements, and relied on her own training, knowledge, and expertise to form her opinions. She also supported her opinions with thorough rationale. Based on the foregoing, the Board finds the probative weight of the evidence does not support a finding that the Veteran's OSA was secondary to his COPD, lung cancer, and chronic hypoxic respiratory failure. The Veteran's OSA is also not due to an event, injury, or disease that occurred while in service. The evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38?U.S.C. §?5107(b); 38?C.F.R. §?3.102. J. SAIKH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Filsinger, Alexandra Q. 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.