Citation Nr: 1751722 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-03 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1988 to July 1992, July 1995 to May 2001, and November 2003 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. The matter was previously remanded in July 2015 for further development. It is now back before the Board for appellate consideration. FINDING OF FACT The Veteran's obstructive sleep apnea did not have onset in service and was not caused or permanently aggravated by his active military service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided this required notice and information regarding his claim for service connection for his sleep apnea in a letter dated December 2010. He has not alleged any notice deficiency during the processing and adjudication of his claim. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records, private treatment records, providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein. The Veteran was first scheduled for a VA examination in October 2015. However, after the Veteran failed to appear at that examination, VA subsequently reschedule another examination in December 2015. The Board finds that the VA examination report is adequate to decide the case because it is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined in December 2015. See 38 C.F.R. § 3.327(a) (2017). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38. U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a)(2016). "To establish a right to compensation for a present disability, a Veteran must show," (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e. a nexus, between the present disability and the disease or injury incurred or aggravated during service." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2016). Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). As a separate matter, the Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("Credibility is determined by the fact finder."). Although an appellant's testimony cannot be rejected simply because it was not reported contemporaneously to service, or noted in the service medical records, the Board still must determine whether lay evidence is credible, in light of factors such as possible bias or conflicting statements, and the absence of contemporaneous medical evidence is a factor that may be weighed against the lay evidence of record. See Buchanan, at 1337. The Veteran contends that he developed obstructive sleep apnea as a result of his military service. His wife submitted a statement dated November 2010 which reported that throughout the Veteran's 21 years of service, she slept next to the Veteran and noticed his excessive snoring, that often caused the Veteran to wake during the night. She asserted that at times, it seemed that the Veteran was not breathing at night, prompting her to check on him. In another buddy statement dated July 2012, the Veteran's fellow service member reported that he served with the Veteran since February 1998. He stated that he noticed that the Veteran was often lethargic and often needed a lot of coffee in order to perform day-time operations. He also witnessed the Veteran's sleeping and found that the Veteran had a propensity to snore, resulting in fitful sleep during the night. The Veteran's Service Treatment Records (STRs) are negative for complaints of treatment for or diagnosis relating to an obstructive sleep apnea diagnosis. The Veteran responded 'no' when he was inquired about whether or not he has had sleep trouble on his separation questionnaires dated June 1992, February 2001, and March 2005. Approximately 5 years post service, VA outpatient treatment records dated June 2010 demonstrated a diagnosis of sleep apnea. The Veteran was provided with a continuous positive airway pressure machine (CPAP) machine. He later reported positive results in sleep by November 2010. The Veteran was afforded a VA examination in December 2015. The VA examiner opined that it was less likely than not that the Veteran's sleep apnea incurred in or is related to his military service. While the Veteran does have obstructive sleep apnea and requires the use of a breathing assistance device, the examiner found that the Veteran was not diagnosed with sleep apnea until 2010, about 5 years after his discharge from service. There was one complaint of lack of sleep in February 2010 and a complaint made by his wife regarding the Veteran's loud snoring in June 2010. Shortly after, a sleep study was conducted in June 2010. There, the Veteran was diagnosed with sleep apnea and was given a CPAP machine. The Board finds that the evidence in this case does not reach the level of equipoise that the Veteran's current sleep apnea had its onset in service. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Rather, the evidence supports a finding that the Veteran's current obstructive sleep apnea did not have onset until years after his separation from service. Furthermore, the Veteran has not presented any medical evidence suggesting that there is a relationship between the Veteran's current sleep apnea and his past military service. The Veteran's buddy statements and his own lay statements asserting a connection between his sleep apnea and his military service, while sincere, are not proof of such a relationship. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. The Veteran has not demonstrated that he has any knowledge or training in determining the etiology of his sleep apnea. In other words, he is a layman, not a medical expert. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the contemporaneous medical evidence, which shows that the Veteran's claimed disability developed years after his 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 veteran). The evidence in this case is not so evenly balanced so as to allow the application of the benefit of the doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, for the reasons above, entitlement to service connection for obstructive sleep apnea is denied. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs