DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served in the U.S. Army from November 1980 to November 1983, appeals the denial of service connection for several conditions, including low back disability, left knee disability, pulmonary embolism, diabetes mellitus, and obstructive sleep apnea. The veteran contended that his low back and knee issues stemmed from in-service football injuries, road marches, and climbing activities, reporting persistent pain since service. He also claimed his pulmonary embolism and diabetes mellitus were related to toxic exposure risk activities (TERAs) at Fort McClellan, Alabama, and that his sleep apnea was due to in-service TERA exposure or secondary to his service-connected tinnitus or PTSD. The Board reviewed multiple VA examinations and the veteran's lay testimony. While the veteran credibly reported in-service injuries and pain, the Board found that post-service factors like obesity, age, and his occupation as a truck driver were more likely etiologies for his current knee and low back conditions. The Board also found that the VA examinations persuasively weighed against a service connection for pulmonary embolism and diabetes mellitus, citing a lack of medical literature linking the Fort McClellan exposures to these conditions and identifying other risk factors. For sleep apnea, the Board found VA opinions adequately addressed the lack of nexus to tinnitus, PTSD, or TERA exposure, attributing the condition to factors like age, obesity, and anatomy. The Board denied all appealed claims.

Rationale

Lack of contemporaneous in-service evidence of low back problems.; Post-service factors (age, obesity, occupation) more likely etiologies.; VA examiner opinions found less likely than not related to service.

Full Decision Text

Citation Nr: 26001045
Decision Date: 01/28/26	Archive Date: 01/28/26

DOCKET NO. 17-46 334
DATE: January 28, 2026

ORDER

Service connection for a low back disability is denied.

Service connection for a left knee disability is denied.

Service connection for a pulmonary embolism is denied.

Service connection for diabetes mellitus is denied.

Service connection for obstructive sleep apnea, to include as secondary to the service-connected tinnitus and/or posttraumatic stress disorder (PTSD), is denied.

FINDINGS OF FACT

1. The Veteran's low back and left knee disabilities were not incurred in and are not related to disease or injury in service.

2. The Veteran's pulmonary embolism and diabetes mellitus were not caused by his in-service toxic exposure risk activities (TERAs), and they are not otherwise related to disease or injury in service.

3. The Veteran's obstructive sleep apnea was not incurred in and is not related to an in-service injury or disease, to include as due to the in-service TERAs; and are not caused or aggravated by the service-connected tinnitus and/or PTSD.

CONCLUSIONS OF LAW

1. The criteria for service connection for a low back are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2.  The criteria for service connection for a left knee disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for pulmonary are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for diabetes mellitus are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for obstructive sleep apnea, to include as secondary to the service-connected tinnitus and/or PTSD, are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1980 to November 1983, with additional service in the U.S. Army Reserve.  While a February 9, 2008, entrance examination for the Virginia Army National Guard is of record, there is no evidence that the Veteran entered into National Guard service thereafter.

This case is before the Board of Veterans' Appeals (Board) on appeal from March 2016 and August 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions.

In the March 2016 rating decision, the RO denied service connection for diabetes mellitus, pulmonary embolism, and sleep apnea.

In the August 2017 rating decision, the RO denied reopening of claims for service connection for low back and left knee disabilities because new and material evidence had not been received.  Furthermore, the decision also denied reopening of the previously denied claim for service connection for diabetes mellitus; however, as noted in the August 2020 Board decision, the Veteran submitted new and material evidence (misstated in the August 2020 decision as "relevant" evidence) within one year of the March 2016 rating decision, and as such, the denial of service connection for diabetes mellitus did not become final. Accordingly, as noted in that decision, reopening of the claim is unnecessary.

In April 2016, VA received the Veteran's Notice of Disagreement (NOD) with the March 2016 rating decision as to the issues of service connection for pulmonary embolism and obstructive sleep apnea.  In September 2017, the RO issued a Statement of the Case (SOC). In September 2017, VA received the Veteran's VA Form 9 appeal to the Board.

In September 2017, VA received the Veteran's NOD with the August 2017 rating decision as to the issues of whether new and material evidence had been received sufficient to reopen the previously denied claims for service connection for low back and left knee disabilities, and service connection for diabetes mellitus.  In September 2019, the RO issued an SOC.  In October 2019, VA received the Veteran's VA Form 9 substantive
6 rating decision as to the issues of service connection for pulmonary embolism and obstructive sleep apnea.  In September 2017, the RO issued a Statement of the Case (SOC). In September 2017, VA received the Veteran's VA Form 9 appeal to the Board.

In September 2017, VA received the Veteran's NOD with the August 2017 rating decision as to the issues of whether new and material evidence had been received sufficient to reopen the previously denied claims for service connection for low back and left knee disabilities, and service connection for diabetes mellitus.  In September 2019, the RO issued an SOC.  In October 2019, VA received the Veteran's VA Form 9 substantive appeal to the Board.

Prior to further action by the Board, the above-noted separate appeals were merged into a single appeal.

In March 2020, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board.  A transcript of that testimony is of record.

In August 2020, the Board remanded the case for further development and adjudicative action.

In March 2023, the Board informed the Veteran that the VLJ who held the March 2020 hearing was no longer employed by the Board and advised him of his right to an additional Board hearing before another VLJ.  In a March 2023 response, the Veteran opted to testify at another Board hearing.

In July 2023, the Veteran testified at a virtual hearing before the undersigned VLJ. A transcript of that testimony is of record.

In September 2023, the Board remanded the case for further development and adjudicative action.

On remand, in an October 2024 rating decision, the RO granted service connection for PTSD and assigned an initial disability rating of 50 percent, effective from February 28, 2017.  This is considered a full grant of the benefits sought on appeal as to the issue of service connection for an acquired psychiatric disorder and, therefore, the issue is not in appellate status.

Next, as discussed at length in the September 2023 Board decision, the large part of the Veteran's service treatment records (STRs), other than a July 10, 1980, enlistment examination report and February 9, 2008, National Guard entrance examination report, have been found to be unavailable.

The law provides that when, through no fault of the Veteran, records under the control of the government are unavailable, the obligation to explain findings and conclusions and to carefully consider the benefit of the doubt rule is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, O'Hare does not raise a presumption that the missing medical records, if available for consideration, would support the claims.  In other words, the fact that the Veteran's STRs are missing does not lower the threshold for allowance of the claims.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Therefore, the fact that the Veteran's STRs are missing, standing alone, does not eliminate the need for the Veteran to have competent and credible evidence supporting the claims showing that he had the claimed disabilities and that there is a nexus between his claimed disabilities and service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing O'Hare, 1 Vet. App. at 367).

Service Connection

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 any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.310(d).

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
isease 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 any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.310(d).

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 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).  In addition, such chronic diseases 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. §§?1101(3), 1112(a)(1), 1113;?38?C.F.R. §§?3.307(a), 3.309(a).

1. Entitlement to service connection for a low back disability.

2. Entitlement to service connection for a left knee disability.

The Veteran contends that his low back and left knee disabilities are related to in-service injuries, claimed to be football-related and as due to wear-and-tear from "25-mile road marches" while carrying a heavy backpack and communication box and other activities, such as climbing poles and equipment.  During the July 2023 Board hearing, he testified that he sought treatment for low back and knee injuries during service injury and reported low back and knee problems at the time of separation. See July 2023 Tr. at 8-9.  Finally, during a January 2023 VA examination for his knee, the Veteran reported that he required use of crutches for six weeks after "twisting" his left knee during a road march.  He has reported persistent low back and left knee pain from 1980 to the present.

A January 2023 VA examination of the thoracolumbar spine revealed diagnoses include degenerative disc disease and spinal stenosis, with associated lower extremity radiculopathy.  A January 2023 VA examination of the left knee revealed diagnoses of left knee joint osteoarthritis, tendinitis, and Osgood-Schlatter's disease.

However, for reasons stated by a February 2024 VA examiner, the evidence persuasively weighs against the finding that the Veteran has Osgood-Schlatter's disease currently.

The Veteran's DD Form 214 indicates that he had a military occupational specialty (MOS) of tactical wire operations specialist.  Therefore, there is no reason to doubt his statements regarding his in-service duties.  Furthermore, despite the lack of availability of supporting STR evidence, his statements regarding acute and repetitive use injuries he has described as occurring during service are similarly consistent with the circumstances of his service.

However, a February 9, 2008, National Guard examination identified no lower extremity or spinal abnormalities.  In an accompanying report of medical history, the Veteran specifically denied recurrent back pain or any back problems and knee trouble.

A September 14, 2010, VA nursing triage note is the first post-service medical evidence of reports of low back and left knee pain to treatment providers.

Turning to the VA opinions of record, the January 2023 VA examiner opined that the disabilities were less likely than not incurred in or caused by service.  However, as noted in the September 2023 Board decision, the examiner relied on lack of evidence of low back or left knee problems on a separation examination and report of medical history; however, neither of the documents is of record.  Given that the examiner relied on an inaccurate factual premise regarding available evidence, the opinions are inadequate and thus are afforded no probative value as to nexus.

Following the September 2023 Board decision, in February 2024, the RO obtained addendum opinions for the low back and left knee.  First, regarding the low back, the examiner concluded that the Veteran's low back disabilities were less likely than not incurred in or caused by service.  The examiner reasoned that "[w]ithout chronic
.  However, as noted in the September 2023 Board decision, the examiner relied on lack of evidence of low back or left knee problems on a separation examination and report of medical history; however, neither of the documents is of record.  Given that the examiner relied on an inaccurate factual premise regarding available evidence, the opinions are inadequate and thus are afforded no probative value as to nexus.

Following the September 2023 Board decision, in February 2024, the RO obtained addendum opinions for the low back and left knee.  First, regarding the low back, the examiner concluded that the Veteran's low back disabilities were less likely than not incurred in or caused by service.  The examiner reasoned that "[w]ithout chronicity during service after service, a post-service event, illness, or injury is considered to be a more likely etiology."  The examiner referenced literature identifying risks for degenerative disc disease including advanced age and certain occupational tasks, such as forceful lifting and bending, though contribution of occupational tasks was, at most a minor contributor to disc disease.

In a February 2024 VA opinion for the left knee, the examiner opined that the left knee disabilities were less likely than not incurred in or caused by service.  The examiner first stated that osteoarthritis develops due to age-related wear-and-tear, that inflammation of the patellar tendon - patellar tendonitis - happens due to overuse of the knee or repetitive hard impacts.  Regarding Osgood-Schlatter's disease, the examiner stated that adult-onset of the disease was "unlikely," because the disease is related to rapid bone growth during childhood.  The examiner noted that the Veteran's medical records were silent for a history or diagnosis of Osgood-Schlatter's disease.  Finally, the examiner stated that there was "a lack of substantiating evidence supporting a nexus between the current diagnosis of osteoarthritis of the left knee, tendonitis, Osgood Schlatter disease. and military service," and that, without chronicity, a post-service etiology was more likely.

However, the above opinions are deficient as to nexus, they are based significantly on lack of contemporaneous evidence during service, when, as here, the Veteran has credibly reported in-service onset of low back and left knee pain and persistently following service.

In August 2024, VA obtained addendums for the low back and left knee from the same examiner to provide additional rationale addressing the Veteran's statements in this regard.  In these opinions, the examiner specifically referenced the Veteran's reports of low back and left knee pain associated with performance of 25-mile road marches while carrying gear and a communications box and as a result of battalion football games; and, as to the left knee, twisting the knee during a road march and needing to use crutches for a period of six weeks.  The examiner also acknowledged the Veteran's reports of continuity of low back and left knee pain following service.

Regarding the left knee specifically, the examiner described the mechanism through which osteoarthritis develops, emphasizing that osteoarthritis develops "gradually over time."  The examiner noted that there was documentation of treatment for the left knee only from 2010 onwards, or 27 years after separation from service.

The examiner next described how knee tendinopathy (or tendinosis) develops.  The examiner noted that tendinopathy was related to multiple factors, which included performance of certain types of repetitive tasks, musculoskeletal deficiencies such as muscle imbalances, weakness, and lack of flexibility, and medical conditions including gout, obesity, rheumatoid arthritis, and type 2 diabetes.  The examiner noted that the Veteran had several risk factors for tendinopathy; from available medical records, these factors would at least include obesity and diabetes.

Regarding Osgood-Schlatter's disease, the examiner suggested that the Veteran most likely did have Osgood-Schlatter's disease during service, based on the Veteran's young age and participation in football.  However, the examiner noted that the medical literature did not show a direct correlation between Osgood-Schlatter's disease and long-term knee pain.  The examiner noted specifically that Osgood-Schlatter's disease could persist for 2 years until fusion of the apophysis, or growing areas of the knee.  The examiner noted that there were other factors, such as obesity, comorbid disease, and the Veteran's occupation as a truck driver that cause or aggravate knee pain.  Finally, the examiner referenced studies indicating that Osgood-Schlatter's disease could be associated with long-term pain; however, the window of the cited study was limited to 4 years after diagnosis of Osgood-Schlatter's disease, which renders it inapplicable to the present situation, where intervening factors, such as the Veteran's post-military occupation and history of
.  The examiner noted specifically that Osgood-Schlatter's disease could persist for 2 years until fusion of the apophysis, or growing areas of the knee.  The examiner noted that there were other factors, such as obesity, comorbid disease, and the Veteran's occupation as a truck driver that cause or aggravate knee pain.  Finally, the examiner referenced studies indicating that Osgood-Schlatter's disease could be associated with long-term pain; however, the window of the cited study was limited to 4 years after diagnosis of Osgood-Schlatter's disease, which renders it inapplicable to the present situation, where intervening factors, such as the Veteran's post-military occupation and history of obesity, that have affected his knees.  The examiner again concluded that it was less likely than not that the Veteran's knee disabilities were caused by service.

Next, regarding the low back, the examiner noted that the medical record revealed treatment for back pain from only 2011.  Next, the examiner noted progression of the low back disability from 2016 to 2022.  Specifically, the examiner noted a 2016 x-ray that revealed degenerative disease and a subsequent 2022 MRI that revealed multilevel degenerative disc disease and spondylosis.  The examiner noted that the Veteran had been overweight in 2016, and that this "most likely contributed to his back problem."  The examiner next referenced literature regarding degenerative disc disease, noting that the most common cause was age-related wear-and-tear.  Other factors included an overloaded spine and slouching or sitting in the wrong position.  The examiner found that the low back disability was aggravated from 2016 to 2022 by "things that the Veteran did during these years (e.g. veteran's life style, occupation, weight gain, etc.)."  Regarding spondylosis, the examiner noted that "cumulative joint stress" from aging was the most common cause.  The examiner mentioned that spondylosis could also arise as a result of previous trauma to the spine.  Given the above, the examiner found that it was less likely than not that the Veteran's low back disabilities were due to service.

Here, the February and August 2024 VA opinions, taken together, consider the Veteran's lay history of in-service knee and low back injuries and pain, as well as pain since separation from service.  While the examiner noted the lack of medical evidence regarding the knees and low back until 2010 and 2011, respectively, that was not the only basis for the opinions.  Specifically, the examiner provided reasoned analyses based on review of the Veteran's medical history and citations to pertinent medical literature.  The examiner distinctly considered each of the knee and low back diagnoses.  The examiner identified multiple post-service factors, such as the Veteran's post-service occupation and recent history of obesity, that had more likely produced the current knee and low back disabilities.  Accordingly, these opinions are afforded significant probative value in this regard.

As noted above, the Veteran has competently reported incurrence of left knee and low back injuries and pain during service, with persistent symptoms to the present.  Nonetheless, as to his reports of continuous left knee and low back symptoms following service, his statements must be weighed against the February 9, 2008, National Guard examination, during which the Veteran was determined not to have any problems associated with the left knee or low back and also specifically denied any problems associated with the left knee or low back.  The detailed, highly pertinent National Guard examination outweighs the Veteran's vague statements regarding persistence of left knee and low back symptoms following service in this regard.

Furthermore, regardless of how probative the Veteran's statements are regarding in-service incurrence and/or persistence following service, the current knee and low back disabilities involve medically complex, internal processes, and the Veteran is not competent to opine regarding nexus between his current disabilities and service.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011).  This is especially true given that the Veteran's activities during the decades following service have impacted his left knee and low back, as noted repeatedly by the February and August 2024 examiner.  Accordingly, his opinion is afforded no probative value.

Given the above, the evidence persuasively weighs against the finding that the Veteran's left knee and low back disabilities were incurred in or are otherwise related to service, or manifested to a degree of 10 percent or more within one year of separation.  Accordingly, service connection for left knee and low back disabilities is not warranted, and the benefit of the doubt doctrine is inapplicable.  38 U.S.C.
seki, 24 Vet. App. 428 (2011).  This is especially true given that the Veteran's activities during the decades following service have impacted his left knee and low back, as noted repeatedly by the February and August 2024 examiner.  Accordingly, his opinion is afforded no probative value.

Given the above, the evidence persuasively weighs against the finding that the Veteran's left knee and low back disabilities were incurred in or are otherwise related to service, or manifested to a degree of 10 percent or more within one year of separation.  Accordingly, service connection for left knee and low back disabilities is not warranted, and the benefit of the doubt doctrine is inapplicable.  38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

3. Entitlement to service connection for a pulmonary embolism.

4. Entitlement to service connection for diabetes mellitus.

The Veteran contends that his pulmonary embolism and diabetes mellitus are related to exposure to environmental contaminants during his service at Fort McClellan, Alabama.  He reports having an "allergic reaction," which he believed to be from tear gas, while in a gas chamber during basic training.  He indicated during the July 2023 Board hearing that he spent 7 to 8 weeks at Camp McClellan in total.

September 2024 VA respiratory and diabetes mellitus examinations revealed diagnoses of pulmonary embolism and diabetes mellitus, respectively.

Furthermore, VA has conceded that the Veteran participated in a toxic exposure risk activity (TERA) during service due to his service at Fort McLellan.  As noted above, exposures include radioactive compounds, chemical warfare agents, and PCBs from the Monsanto plant in the neighboring town.

However, in this case, the evidence persistently weighs against the finding that the pulmonary embolism and diabetes mellitus were caused by the in-service TERA.

Although, as noted above, the Veteran's STRs have been found to be largely unavailable, the February 9, 2008, National Guard examination and report of medical history revealed no evidence of diabetes mellitus or pulmonary embolism.

The Veteran was diagnosed with a pulmonary embolism on March 25,2015.  VA treatment records dated July 9, 2015, provide the first reference to diabetes mellitus.

Of record are September 2024 VA TERA opinions for the pulmonary embolism and diabetes mellitus - completed by the same examiner.  

The examiner opined that the pulmonary embolism and diabetes mellitus were less likely than not caused by the Veteran's in-service TERAs.  The examiner first acknowledged the following exposures found to be associated with service at Fort McClellan based on a literature review: radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base; chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base; and PCBs.

Regarding the pulmonary embolism, the examiner noted that Veteran had a history of pulmonary embolism and deep vein thrombosis.  The examiner indicated that a pulmonary embolism develops when a blood clot obstructs the pulmonary artery or its branches.  The examiner noted the interrelation between pulmonary embolism and deep vein thrombosis, with "most [pulmonary embolisms] originating as a result of lower extremity [deep vein thromboses]."  The examiner indicated that "Virchow's triad of hypercoagulability, venous stasis, and endothelial injury," underlay the risk factors for pulmonary embolism, which included genetic and acquired risk factors.  The examiner listed genetic and acquired risk factors in detail.  Most pertinently, acquired risk factors included "immobilization for prolonged periods (bed rest of greater than 3 days, anyone traveling greater than 4 hours, whether by air, car, bus, or train."  The examiner referenced the Veteran's occupational history as a long-haul truck driver, and concluded that this history "played a significant role in the development of his blood clots."  The examiner also found that there was no medical literature linking any of the above-noted exposures with pulmonary embolism.  The examiner also referenced the Veteran's "delayed presentation of his symptoms" for 30 years following TERA exposure, "short duration of exposure (8 weeks)," and "various other etiologies that could cause his," pulmonary embolism.

Regarding the diabetes mellitus, the examiner first noted that the Veteran's diabetes type is caused by insulin resistance and develops over time as
 whether by air, car, bus, or train."  The examiner referenced the Veteran's occupational history as a long-haul truck driver, and concluded that this history "played a significant role in the development of his blood clots."  The examiner also found that there was no medical literature linking any of the above-noted exposures with pulmonary embolism.  The examiner also referenced the Veteran's "delayed presentation of his symptoms" for 30 years following TERA exposure, "short duration of exposure (8 weeks)," and "various other etiologies that could cause his," pulmonary embolism.

Regarding the diabetes mellitus, the examiner first noted that the Veteran's diabetes type is caused by insulin resistance and develops over time as a result of the body's eventual inability to produce increased insulin in response to a diminished insulin response.  The examiner noted that diabetes mellitus is commonly seen in individuals older than 45 years, that approximately 10 percent of the American population had diabetes mellitus, and that prevalence of diabetes mellitus increases with age. The examiner noted that there was no medical literature linking any of the above-noted exposures with diabetes mellitus.  The examiner also referenced the Veteran's "delayed presentation of his symptoms" for 30 years following TERA exposure, "short duration of exposure (8 weeks)," and "various other etiologies that could cause his," diabetes mellitus.

Regarding the above opinions, the examiner identified the exposures associated with service at Fort McLellan and accounted for the Veteran's duration of service at that location and elapsed time since the exposures.  The rationales for the opinions address the underlying etiology of diabetes mellitus and pulmonary embolism in detail, and signal review of pertinent literature regarding the Veteran's exposures.  Given the above, the September 2024 opinions regarding pulmonary embolism and diabetes mellitus are afforded significant probative value.

Here, the etiologies of the Veteran's pulmonary embolism and diabetes mellitus involve medically complex, internal processes, and the Veteran is not competent to opine regarding nexus between these disabilities and his in-service TERAs.  Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 428.  Accordingly, his opinions are afforded no probative value in this regard.

Given the above, the evidence persuasively weighs against the finding that the Veteran's pulmonary embolism and diabetes mellitus are related to his in-service TERAs, or are otherwise related to service.  Accordingly, service connection for these pulmonary embolism and diabetes mellitus is not warranted, and the benefit of the doubt doctrine is inapplicable.  38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776.

5. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected tinnitus and/or PTSD.

The Veteran contends that his obstructive sleep apnea had onset during service, is related to his in-service TERA related to service at Fort McClellan, or is secondary to his service-connected tinnitus, or more particularly, stress due to tinnitus leading to unrestful sleep.  Furthermore, in a December 2024 Informal Hearing Presentation, the Veteran's representative asserted that the obstructive sleep apnea was secondary to his service-connected PTSD.

October 2022 and September 2024 VA examinations confirmed a diagnosis of obstructive sleep apnea.  The diagnosis was based on a May 2016 VA sleep study.

During the March 2020 Board hearing, the Veteran reported that he was "always tired," and would still feel tired after a "good night's sleep."  He indicated that he did not report his symptoms during service because going to medical was a "no-no" at that time in history.  He stated that these symptoms continued after service.  See Tr. at 13-16.  He made similar assertions during the July 2023 Board hearing.

The February 9, 2008, National Guard examination and report of medical history revealed no evidence of obstructive sleep apnea or sleep problems.

As noted above, there was no diagnosis of obstructive sleep apnea until the May 2016 VA study. 

Here, there is no reason to doubt the Veteran's statements regarding experiencing tiredness and unrestful sleep during and after service.  However, to the extent that the Veteran believes that his tiredness and unrestful sleep during and after service were symptomatic of sleep apnea, his opinion is not competent and is afforded no probative value in this regard.  See Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 428.

Turning to VA medical opinions of record, the October 2022 VA examiner addressed whether the Veteran's obstructive
 sleep problems.

As noted above, there was no diagnosis of obstructive sleep apnea until the May 2016 VA study. 

Here, there is no reason to doubt the Veteran's statements regarding experiencing tiredness and unrestful sleep during and after service.  However, to the extent that the Veteran believes that his tiredness and unrestful sleep during and after service were symptomatic of sleep apnea, his opinion is not competent and is afforded no probative value in this regard.  See Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 428.

Turning to VA medical opinions of record, the October 2022 VA examiner addressed whether the Veteran's obstructive sleep apnea was secondary to his service-connected tinnitus.  The examiner concluded that the sleep apnea was neither proximately due to (or the result of) nor aggravated beyond the natural progression by the service-connected tinnitus.  In support of the causation opinion, the examiner noted that obstructive sleep apnea is due to an "anatomically reduced upper airway due to excess surrounding soft tissue or a highly compliant airway," and that tinnitus was not an etiology of sleep apnea.  Regarding aggravation, the examiner found that the Veteran's sleep apnea was a "natural progression of disease," and that there was "no evidence of aggravation as per current exam."  The examiner noted review of medical textbook evidence with regard to both opinions.

Next, in September and October 2024 opinions, the September 2024 examiner addressed direct and TERA nexus and secondary causation by the service-connected tinnitus.

Regarding direct nexus, the examiner opined that the obstructive sleep apnea was less likely than not incurred in or caused by service.  The examiner first noted that there was a lack of evidence demonstrating "chronicity and continuity of care relating or linking the Veteran's [obstructive sleep apnea] to his military service."  The examiner noted a "30-year gap" between discharge and diagnosis of sleep apnea via the May 2016 sleep study.  The examiner acknowledged the Veteran's reports of unrestful sleep.  However, the examiner noted that, while obstructive sleep apnea results in "extreme daytime fatigue," unrestful sleep alone did not correlate with sleep apnea, to include later in life.  The examiner noted that anatomy, age, and obesity were strong indicators of sleep apnea based on medical literature.

Regarding nexus to the Veteran's in-service TERAs, the examiner opined that the obstructive sleep apnea was less likely than not caused by the Veteran's in-service TERAs.  As with the pulmonary embolism and diabetes mellitus, the examiner described the exposures associated with Fort McLellan and the Veteran's duration of service there.  However, the examiner indicated that there was no medical literature linking obstructive sleep apnea with these exposures.

Next, regarding secondary causation by the service-connected tinnitus, the examiner opined that the obstructive sleep apnea was less likely than not proximately due to the service-connected tinnitus.  The examiner first noted that tinnitus was the perception of sound not accompanied by an external source, and that sleep apnea was caused by repetitive upper airway collapse during sleep.  Risk factors of sleep apnea included "older age, male sex, obesity, craniofacial and upper airway abnormalities, smoking, and family history of snoring."  The examiner also noted possible drugs and other medical conditions associated with sleep apnea.  However, the examiner noted simply that "tinnitus cannot cause upper airway collapse."

Finally, of record is an April 2021 private nexus opinion prepared by Dr. Fredrick W. Nolen, Ph.D.  Dr. Nolen opined that the sleep apnea "has the nexus of or aggravated by his military-related tinnitus more likely than not."  Dr. Nolen cited literature purporting to show that tinnitus was associated or correlated with sleep apnea.  Dr. Nolen then noted that some "hypothesize that the tinnitus is very stressful to the patient (as this Veteran reported) and stress is associated with sleep disorders, including sleep apnea."  Dr. Nolen acknowledged that the Veteran had other risk factors for sleep apnea, such as being African American, male, and obese.  Dr. Nolen suggested that the Veteran's anxiety and depression were also "strongly connected to sleep apnea."  Dr. Nolen then suggested that he believed that the Veteran had a thyroid problem related to exposures at Fort McLellan which "can cause his weight to fluctuate wildly."  Dr. Nolen identified other risk factors such as neck circumference, narrowed airway, and history of smoking.

The Notes to Dr. Nolen's opinion - which discusses PTSD and obstructive sleep apnea,
 (as this Veteran reported) and stress is associated with sleep disorders, including sleep apnea."  Dr. Nolen acknowledged that the Veteran had other risk factors for sleep apnea, such as being African American, male, and obese.  Dr. Nolen suggested that the Veteran's anxiety and depression were also "strongly connected to sleep apnea."  Dr. Nolen then suggested that he believed that the Veteran had a thyroid problem related to exposures at Fort McLellan which "can cause his weight to fluctuate wildly."  Dr. Nolen identified other risk factors such as neck circumference, narrowed airway, and history of smoking.

The Notes to Dr. Nolen's opinion - which discusses PTSD and obstructive sleep apnea, and obesity as an intermediate step - appears to be general boilerplate language that does not appear to be intended to supplement the above opinion, as the opinion does not discuss PTSD.  There is no clearly articulated opinion regarding either of these theories in the opinion.

First, regarding secondary causation and aggravation, the October 2022 and October 2024 opinions, taken together, are based on consideration of the claims file, examination of the Veteran, and pertinent medical literature.  The thrust of the opinions is essentially this: unrestful sleep, to include due to tinnitus, has no relation, anatomically or otherwise, to obstructive sleep apnea.  Both examiners discussed the etiology of sleep apnea, and the October 2024 opinion discusses numerous unrelated risk factors for sleep apnea, several of which are associated with the Veteran's medical history, e.g., older age, male sex, and obesity.

It is acknowledged that the examiners referred to "proximate" causation and aggravation "beyond the natural progression."  However, it should be noted that the examiners did not find any relationship between obstructive sleep apnea and tinnitus.  As such, the standards of causation and aggravation applied by the examiner do not manifestly affect the adequacy or probative value of the opinion. Here, unlike in Spicer, the Veteran has not made any contentions regarding secondary nexus that would contemplate a broader degree of causality and/or aggravation, such as preclusion of a corrective medical procedure for a nonservice-connected disability due to use of a certain medication for treatment of a service-connected disability. Given the above, the examiner's use of language regarding proximate causation and aggravation beyond the natural progression was harmless error in this regard.  

Next, it is acknowledged that the September 2024 examiner did not address aggravation.  However, the October 2022 aggravation opinion is adequate to address this theory, with the examiner noting that there was "no aggravation," at all.  This, too, was harmless error.  Given the above, the October 2022 and October 2024 opinions are afforded significant probative value as to secondary nexus.

Next, regarding direct nexus, the October 2024 opinion considered the Veteran's medical history, to include his lay history of unrestful sleep since service, discussed the etiology of obstructive sleep apnea, and identified other risk factors for sleep apnea (anatomy, age, and obesity), two of which, as noted above, are clearly indicated in the Veteran's medical history.  Accordingly, the October 2024 opinion is afforded significant probative value as to secondary nexus.

Furthermore, regarding nexus to the in-service TERAs, the September 2024 examiner identified the exposures associated with service at Fort McLellan and accounted for the Veteran's duration of service at that location and elapsed time since the exposures.  The rationale for the opinion addresses the underlying etiology of obstructive sleep apnea, and references review of medical literature.  Accordingly, the September 2024 opinion is afforded significant probative value in this regard.

Finally, regarding Dr. Nolen's April 2021 opinion, the supporting medical evidence cited in the opinion is either merely associative or hypothesized, i.e., speculative, in nature.  See Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018); Bloom v. West, 12 Vet. App. 185, 187 (1999).  Dr. Nolen's conclusory statements referring to the Veteran's anxiety and depression, thyroid problem, and pulmonary embolism are unsupported by any further rationale.  Notably, in support of thyroid nexus, Dr. Nolen cited the website of a veterans benefits law firm rather than treatise evidence.  In any case, the evidence purporting to show that the Veteran's weight did indeed fluctuate wildly was a single 2020 record dated four years after the diagnosis of obstructive sleep apnea.  It should be noted that VA treatment records indicate that treatment providers repeatedly advised the Veteran to lose weight via diet and exercise changes
); Bloom v. West, 12 Vet. App. 185, 187 (1999).  Dr. Nolen's conclusory statements referring to the Veteran's anxiety and depression, thyroid problem, and pulmonary embolism are unsupported by any further rationale.  Notably, in support of thyroid nexus, Dr. Nolen cited the website of a veterans benefits law firm rather than treatise evidence.  In any case, the evidence purporting to show that the Veteran's weight did indeed fluctuate wildly was a single 2020 record dated four years after the diagnosis of obstructive sleep apnea.  It should be noted that VA treatment records indicate that treatment providers repeatedly advised the Veteran to lose weight via diet and exercise changes.  For example, a December 9, 2016, VA treatment record indicates that the Veteran had intentionally reduced his weight via dietary changes, and that weight variance between the time of that note and the 2020 revealed variances of only approximately 5 to 10 pounds in general.  Dr. Nolen did not attempt to engage with this evidence.  While Dr. Nolen repeatedly referenced the Veteran's obesity in the opinion, there was no attempt to link tinnitus, or any other disability, to sleep apnea through the intermediate step of obesity; as such, this theory warrants no further discussion.  Dr. Nolen also cited numerous risk factors for sleep apnea, some of which are associated with the Veteran's medical history, and did not attempt to reason how the obstructive sleep apnea was caused or aggravated by tinnitus in light of these factors.  Finally, it should be noted that Dr. Nolen is a neuropsychologist who has not been shown to be qualified to opine on matters related to physiology unrelated to neurology, as he has attempted to do here.  Given the above, the April 2021 opinion is afforded no probative value, and is outweighed by the VA opinions of record.

Finally, in the December 2024 Informal Hearing Presentation, the Veteran's representative referenced several studies purporting to show associations between sleep apnea and PTSD.  Copies of these studies were not submitted with the Informal Hearing Presentation.  In any case, these studies were apparently suggestive of association rather than causation or aggravation and/or increase in PTSD symptom severity due to obstructive sleep apnea.  Neither of these studies as cited reasonably raise the theory of secondary nexus between the obstructive sleep apnea and recently service-connected PTSD, with no indication the PTSD causes or aggravated obstructive sleep apnea, sufficient to provoke further development in this case.  Here, the significantly probative VA opinions clearly point to other etiologies, such as obesity and advancing age

Given the above, the evidence persuasively weighs against the finding that the Veteran's obstructive sleep apnea was incurred in or is otherwise related to service, to include as due to the Veteran's in-service TERAs, or are caused or aggravated by the service-connected tinnitus and/or PTSD.  Accordingly, service connection is not warranted, and the benefit of the doubt doctrine is inapplicable.  38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776.

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Small, Attorney Advisor

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.