Citation Nr: 1752785 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-48 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to August 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Following a May 2012 hearing, this case was remanded in April 2014, September 2016, and May 2017. FINDING OF FACT The Veteran's current sleep apnea is not shown to be etiologically related to active service, nor is it shown to be caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104, (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and peptic ulcers, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). Under 38 C.F.R. § 3.310(a) (2017), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). III. Analysis In this case, the Board acknowledges a current diagnosis of sleep apnea. In an October 2016 VA examination report, the examiner noted that the Veteran was diagnosed with sleep apnea in 2008 following a sleep study. The examiner reported that the Veteran required the use of a continuous positive airway pressure (CPAP) machine. The Board has reviewed the service treatment records and, affording the Veteran the benefit of the doubt, notes instances of problems initiating and maintaining sleep in December 1995, although no diagnosis of sleep apnea was made during active service. Give the above, the remaining questions for the Board are whether there is an etiological relationship, or nexus, between the current disability and service, specifically the in-service treatment, or whether the Veteran's already service-connected disabilities caused or aggravated his current sleep apnea. In the May 2012 hearing, the Veteran and his spouse testified as to his sleeping difficulties. His spouse stated that "my husband has suffered for a number of years since he returned from Desert Storm, of long periods of loud snoring, he would also stop breathing while sleeping and when I move him or try to wake him up, he would wake up gasping for air..." The Veteran testified that he had sleep disturbances as far back as 1991 and at his exit examination in May 1996. Evidence directly addressing the question of nexus is limited to an October 2016 VA examination report and a second addendum opinion in May 2017. In the October 2016 VA examination report, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was a preponderance of evidence that the Veteran's sleep apnea was more likely than not a post-service condition and less likely an in-service condition. In this examination report, the examiner also seemed to imply that the Veteran's sleep disturbances during active service were related to his now service-connected mental health disability. In a subsequent May 2017 VA addendum opinion, the examiner opined that it was less likely than not that the Veteran's sleep apnea was caused by any of his service-connected disabilities, to include depressive disorder, plantar fasciitis, degenerative disc disease lower spine with radiculopathy, right knee patellar tendinitis, and right ankle tendinitis. The examiner noted that literatures "abound" with regard to the etiology of obstructive sleep apnea, that this occurs when the throat muscles intermittently relax and block the airways during sleep. The VA examiner reported that the Veteran's service-connected disabilities would not cause that obstructive process in the throat. The examiner finally opined that it was also less likely than not that the Veteran's service-connected disabilities would cause aggravation of his obstructive sleep apnea for the same reasons. The Board finds that the October 2016 VA examination report and the May 2017 VA addendum opinion are the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. The Veteran and his spouse are competent to observe lay symptoms, but they do not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the above analysis, the preponderance of the evidence is against the claim for service connection for sleep apnea, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs