Citation Nr: 1753659	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  11-07 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1970 to December 1974; September 1980 to March 1987; and from July 1991 to July 1992.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

The December 2014 rating decision continued to deny a previously denied claim of entitlement to service connection for sleep apnea. Although the RO certified the matter to the Board as an original claim for service connection, a May 2013 rating decision denying entitlement to service connection for sleep apnea is final; thus, the claim was recharacterized as a claim to reopen by the Board in May 2017. A May 2017 Board decision found there was new and material evidence sufficient to reopen the claim for entitlement to service connection, and the issue was remanded for additional development. The Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

A Supplemental Statement of the Case (SSOC), issued by the RO in June 2017, continued to deny service connection for the Veteran's sleep apnea.


FINDING OF FACT

The Veteran's sleep apnea did not have its onset during active service and is not otherwise etiologically related to active service.


CONCLUSION OF LAW

The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 

Additionally, the Board finds there has been substantial compliance with its May 2017 remand directives. VA records from April 2016 have been associated with the Veteran's claims file. A letter was sent to the Veteran in May 2017 providing him the opportunity to submit lay statements, buddy statements, or any other private treatment records to support his claim. No additional evidence was received. A VA examination was conducted in June 2017, and a July 2017 SSOC continued to deny service connection for sleep apnea. 

Based on the foregoing, the Board finds the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall, 11 Vet. App. at 268. Therefore, the Board will proceed to review and decide the claim based on the evidence of record.

II. Service Connection - Sleep Apnea

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

The Veteran was diagnosed with sleep apnea after a sleep study in September 2017, meeting the first requirement of service connection. The Veteran contends that he has had difficulty sleeping since service, and that he did not know what sleep apnea was in service and saw no reason to report his difficulty sleeping at that time.

In June 2017, the Veteran underwent a VA examination. The examiner confirmed the Veteran's diagnosis of sleep apnea, but opined that the Veteran's sleep apnea was less likely than not related to active duty service. The examiner opined that the Veteran was not diagnosed with sleep apnea until 2014, 22 years after discharge from service, and at his sleep study in 2014, the Veteran indicated he had only had difficulty sleeping for a few years, which is evidence that tends to establish that sleep apnea had its onset decades after service discharge. 

Additionally, the Veteran was seen in January 2006 and complained of headaches at that time. The examiner noted that the Veteran's headaches did not "fit precisely into a clear syndrome" with elements of migraines and tension headaches.  The examiner added, "I did not find evidence in history or exam of caffeine withdrawal, [obstructive sleep apnea], or medication rebound headaches." This would indicate that the examiner specifically asked questions about whether the Veteran had obstructive sleep apnea, and the answer was negative. This further supports the finding by the VA examiner that the Veteran's sleep apnea did not have its onset until closer to 2014. 

The Board finds that while the Veteran is competent to report difficulty sleeping in service and since discharge from service. However, the Board finds the preponderance of the evidence is against a finding that the Veteran's current sleep apnea had its onset in service. The Veteran's medical records and STRs are largely silent for any complaints of difficulty sleeping suggestive of sleep apnea (versus difficulty sleeping because of psychiatric symptoms) until many years after service, and the Veteran was not diagnosed with sleep apnea until 22 years after discharge from service, which the VA examiner opined made it less likely than not that the Veteran's current disability was related to service. Further, as noted above, in 2006, a VA examiner investigated whether headaches that the Veteran was experiencing were related to other medical issues, which included his attempting to determine if there was a history of sleep apnea. The examiner made a finding that he did not find a history of sleep apnea at that time. Thus, approximately 14 years following service discharge, the evidence shows the Veteran did not have sleep apnea, which supports the medical professional's conclusion that sleep apnea did not have its onset in service and further supports the finding that the Veteran's in-service sleep complaints were not indicative of sleep apnea.

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied.


ORDER

Entitlement to service connection for sleep apnea is denied.




____________________________________________
A. P. SIMPSON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs