Citation Nr: 1753959 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-09 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from February 1982 to February 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2017. A transcript of that hearing is of record. FINDING OF FACT OSA was not shown in service and the weight of the evidence fails to establish that the Veteran's currently diagnosed OSA is etiologically related to her active service. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs) and VA treatment records have been obtained. Additionally, the Veteran testified at a hearing before the Board in July 2017. No VA examination was requested in relation to the issue of service connection for OSA. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is acknowledged to be a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for OSA. See 38 U.S.C. § 5103A(a). The weight of evidence is against a finding that OSA had its onset during active service or within one year of separation from active service, and competent evidence even suggesting that OSA may be associated with service has not been presented. As such, elements (2) and (3) are absent. Therefore, as discussed in detail below, VA has no duty to provide a VA examination or obtain an opinion in this case. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the claim. Essentially, beyond the Veteran's statements, no evidence is of record to suggest that the Veteran's OSA either began during or was otherwise caused by her active service. These statements alone are insufficient to trigger VA's duty to provide an examination, as they are undermined by her statements at the time of separation. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection 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 military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran filed her claim for service connection in June 2012, which was denied by an October 2012 rating decision. The Veteran asserts that her OSA is due to her active service. She testified that during her active service, she just felt tired. She also testified that she first noticed OSA symptoms in 2008 and was diagnosed with OSA in 2008. Finally, she testified that a medical profession had never told her that her OSA was related to her active service. The Veteran's STRs do not show any complaints, symptoms, treatment, or diagnosis for OSA. Furthermore, at her separation examination in November 1985, she specifically denied having any frequent trouble sleeping and had a normal examination of her chest and lungs. Likewise, after the Veteran's separation from service, the medical records do not show any complaints, treatment, or diagnosis for OSA until a November 2008 sleep study that showed a diagnosis of OSA, more than twenty years after her separation from service. The record contains no evidence of OSA in service or after her separation from service until over twenty years later. There is also no competent medical opinion of record which even suggests that the Veteran's currently diagnosed OSA even might be related to her service. Consideration has been given to the Veteran's allegation that her OSA is due to her active service. She is clearly competent to report symptoms of OSA, including snoring and tiredness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, while the Veteran may describe symptoms of OSA, she lacks the medical training or qualification either to diagnose OSA or to relate it to any in-service event or injury. Id. Here, the Veteran has asserted that she was tired in service, but she specifically denied sleep problems at separation, and there is no record of any treatment for OSA for twenty years after service. She testified that she only got tested because her boyfriend had recommended it, based on his observations. From a review of the file, it is unclear that the Veteran has actually reported any symptomatology that is unique to OSA. At her Board hearing, the Veteran was asked point blank why she believed her OSA was the result of her military service. Her response was essentially that a lot of people have sleep apnea but do not realize it, and that it was not a really recognized Condition when she was younger. Of note, the Veteran did not advance any medical or scientific evidence to support her assertion. Additionally, while the Board does not doubt that many people are not aware that they have sleep apnea, accepting such a statement as fact does not make it more or less likely that the Veteran's OSA, which was diagnosed decades after service, onset during her military service. Much of the Veteran's testimony centered on why she eventually got tested, but did little to introduce in-service symptomatology she recalled experiencing or was told she was experiencing that might support her OSA having onset while in the military. In her substantive appeal, the Veteran suggested that her schedule in the military, with many overnight shifts and changing schedules had caused OSA to develop. However, she provided no empirical evidence to support such a contention. Here, no medical professional has suggested that the Veteran's OSA either began during or was otherwise caused by his military service, and the Veteran has not related in-service symptoms that had continued since service that would suggest the onset of OSA in service. Accordingly, the criteria for service connection have not been met for OSA. Therefore, the claim is denied. ORDER Service connection for OSA is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs