Citation Nr: 1751344 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-29 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial compensable rating for laceration scars on the face and skull. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from November 1982 to November 1986. The issue of an initial compensable rating for laceration scars on the face and skull is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's currently-diagnosed obstructive sleep apnea was not shown in service and is not otherwise causally or etiologically related to service. CONCLUSION OF LAW Obstructive sleep apnea was not incurred in service. 38 U.S.C.A. §§ 1131, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran has been diagnosed with obstructive sleep apnea; therefore, the first element of a current diagnosis has been shown. Nonetheless, he does not assert that sleep apnea is secondary to another service-connected disability; therefore, service connection on a secondary basis is not warranted. Further, sleep apnea is not one of the chronic diseases listed in 38 C.F.R. § 3.309(a); therefore, the presumptions under 38 C.F.R. § 3.303(b) are not for application. Next, service treatment records are negative for any complaints, diagnoses, or treatment for a sleep disorder. In an October 1986 Report of Medical History, completed by the Veteran at service separation, he specifically checked "NO" as to having frequent trouble sleeping. Therefore, medical evidence does not reflect that the second element (in-service incurrence) is present. Nonetheless, as a current disorder is currently shown and the Veteran has asserted sleep apnea since service, the next question is whether there is a casual relationship between the current diagnosis and his lay statements. Post-service VA treatment records include a May 2012 nursing note where the Veteran called and reported symptoms of snoring and waking up tired. He was interested in getting a sleep study. This is the first recorded post-service complaint related to a sleep disorder, coming more than two decades after service separation. In a July 2012 VA primary care visit note, he reported decreased sleep at night due to snoring and witnessed apneic spells. VA treatment records also include an August 2012 pulmonary consultation note where the Veteran reported symptoms of snoring and witnessed apneic spells. During the evaluation, he reported daytime somnolence for 5 years with weight gain and increased snoring for 2 years. He indicated that his wife had witnessed apneas and often slept in a different room. This dates the onset of symptoms to approximately 2007, more than 20 years after discharge. In a May 2013 VA examination, the Veteran was confirmed to have a diagnosis of obstructive sleep apnea. The examiner indicated that there were lay statements from the Veteran's wife, brother, and fellow service members in the claims file-all indicating that he had some symptoms of sleep apnea since service or soon after separation from service. Moreover, the examiner cited to the August 2012 VA pulmonary consultation note where he was referred for a sleep apnea evaluation. At that time, the examiner noted that the Veteran reported daytime somnolence for 5 years with weight gain and increased snoring for 2 years. The May 2013 VA examiner reviewed the evidence of record and opined that the Veteran's sleep apnea was less likely than not incurred in or otherwise related to service. In support of this opinion, the examiner stated that, while there were subjective statements by lay people, there was no evidence of in-service treatment of any sleep problems. Additionally, in the pulmonary consultation note, the Veteran reported that his symptoms had been present for the past 5 years, which would place the onset of his symptoms more than 20 years after service separation. This evidence weighs against the claim as it dates the onset of symptoms to many years after service. The evidence of record also includes a January 2016 statement from the Veteran where he indicated that the VA pulmonary consultation note in August 2012 incorrectly indicated that he only had symptoms of sleep apnea for 5 years. According to the Veteran, he had indicated to the examiner that he was only aware of his sleep apnea symptoms in the last 5 years. He stated that he had never heard of sleep apnea before 2007 and, therefore, was unable to recognize the symptoms. In May 2012 and January 2013 buddy statements from fellow service members noted that they witnessed the Veteran's snoring and that he would stop breathing momentarily during service. The Veteran's wife also submitted a statement in July 2012. During the course of his enlistment to the present, she wife indicated that she had experienced many nights of sleep deprivation due to his loud and frequent snoring, to include short pauses of what appeared as though he was not breathing. While the Board finds that the Veteran's wife and fellow service members are competent to report observable symptoms (such as snoring or gasping for breath), they are not competent to diagnose sleep apnea during service. In other words, they are reporting lay observations from years ago, and opining that his symptoms at that time were due to sleep apnea without having conducted a sleep study at that time. The presence of sleep apnea in this case is a medical determination not capable of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). This is because snoring, or episodes of observed stopping breathing, or a feeling of fatigue alone are not sufficient to diagnose sleep apnea. Rather, the Veteran was diagnosed with sleep apnea only after undergoing a sleep study interpreted by a medical professional. Therefore, layperson diagnosis of onset of sleep apnea is not competent evidence. Moreover, the Board places less probative value on the Veteran's statements regarding persistent symptoms associated with sleep apnea since service. Although now, pursuant to his claim for VA compensation benefits, he maintains that he had sleep apnea symptoms since service, the objective evidence shows that he never reported any problems consistent with sleep apnea until many years after service separation. In this regard, there are no reports of fatigue, daytime somnolence, or trouble sleeping in any of the service treatment records, including the Report of Medical History at service separation. The absence of findings or treatment for a sleep disorder or complaints relating to fatigue during service or at separation from service, in this context, is highly probative contemporaneous evidence that he did not have characteristic manifestations of sleep apnea in service. See Kahana v. Shinseki, No. 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Further, post-service VA treatment records are absent for any complaints relating to sleep apnea for 20 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Additionally, in the August 2012 VA pulmonary consultation note, he specifically reported symptoms of daytime somnolence for 5 years with weight gain and increased snoring for 2 years. He did not indicate that he had these symptoms since service separation, although he asserted that he did not recognize the symptoms as sleep apnea. Nevertheless, the evidence does not show that he ever reported the symptoms to any health professional. In this regard, the Board finds that the Veteran's statements made in the course of treatment to his treating physician (such as in the August 2012 VA pulmonary note) have greater probative value than the statements made pursuant to the VA compensation claim. This is because statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, following service separation, the Veteran filed a claim for service connection in February 2007 for knee, ankle, and hearing loss. In May 2009, he filed another claim for tinnitus. In March 2010, he filed claims for hypertension, skin rash, scars, and a low back disorder. He did not mention any symptoms of a sleep disorder, to include sleep apnea, at the time he filed these other claims. In his January 2016 statement, he indicated that he had never heard of sleep apnea before 2007 and, therefore, was unable to recognize the symptoms. This does not explain why he did not file a claim for sleep apnea in May 2009 or March 2010 (when he filed other claims for service connection). The Board recognizes that, while inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that he is presenting all issues for which he is experiencing symptoms that he believes are related to service. The Veteran's inaction regarding a claim for a sleep disorder, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative of his belief that he did not sustain a sleep disorder in service and a lack of symptomatology at the time he filed the other claims. For these reasons, and based on the evidence of record, the weight of the competent, credible, and probative evidence is against a finding of relationship between the Veteran's sleep apnea and service. The preponderance of the evidence is against the claim and the appeal is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER Service connection for obstructive sleep apnea is denied. REMAND The Veteran maintains that a compensable rating is warranted for his laceration scars on the face and skull. Under Diagnostic Code (DC) 7800, a 10 percent evaluation is warranted when there is one characteristic of disfigurement of the head, face, or neck. In Note (1) under DC 7800, the eight characteristics of disfigurement include, in pertinent part, a scar at least one-quarter inch (0.6 cm.) wide at its widest part. The Veteran was afforded a VA scar examination in March 2011. At that time, the examiner indicated that the right parietal /temporal scar and right eye scar were 0.5 cm wide. In a September 2012 VA Form 9, he disagreed with the measurements conducted during the March 2011 VA examination. Specifically, he noted that his right eye scar was "at least" 0.6 cm wide. Additionally, he reported that the scar caused his skin and flesh to be concave and indented; as such, without these indentations, the scar would be wider than 0.6 cm. Under the circumstances, a new scar examination is warranted to clarify the characteristic of disfigurement of the Veteran's facial scars, to include measurements pertaining to the width of each scar. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the extent of his disability. The examiner should: (a) Identify each scar of the face and skull. (b) The examiner should discuss the characteristics of disfigurement with respect to each of the Veteran's facial/skull scars, to include whether the scars are at least one-quarter inch (0.6 cm.) wide at its widest part. 2. Then readjudicate the claim. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs