Citation Nr: 1800536 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-12 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.T.Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1997 to November 2001 and from August 2002 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a BVA hearing, which was scheduled for May 2017, but the Veteran did not appear, and neither the Veteran nor his representative has submitted a statement of good cause or an additional request for a Board hearing. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2017). FINDING OF FACT Sleep apnea did not have onset during active service and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty 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). 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. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2017). 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 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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against granting service connection for sleep apnea. The reasons for this determination are explained below. Regarding evidence of a current disability, the Veteran has a current diagnosis of severe sleep apnea, which was diagnosed following a February 2011 diagnostic sleep study. He was given a CPAP machine to use while sleeping. The Board finds that although the Veteran has a current disability of sleep apnea, there is no in-service onset of sleep apnea and there is no nexus between his military service and his current disability. As to an in-service disease or injury, the Veteran's in-service treatment records do not document that the Veteran was having difficulties with sleeping while in service. In fact, the Veteran was given several in-service examinations, and at no point did he indicate that he was having sleeping trouble. For example, in August 2005, he was asked if he had trouble falling or staying asleep, and he checked, "Not at all." At that time, he also specifically denied difficulty breathing or still feeling tired after sleeping. In November 2007, the Veteran denied having any medical problems or symptoms that bothered him. The Veteran suggested in his April 2012 notice of disagreement that the military failed to diagnose his unexplained breathing episodes he was experiencing in service while sleeping. However, throughout the Veteran's two periods of service, he was not seen nor was it documented in his treatment records that he had symptoms of sleep apnea. He mentioned seeing combat medics in his statement, which suggests that he was referencing a time period in which he was deployed. Again, the Veteran completed a post-development evaluation after his deployment in August 2005 and specifically denied trouble falling or staying asleep, difficulty breathing, or still feeling tired after sleeping. In an August 2006 post-deployment health assessment, he was asked if he had a health concern or condition that he felt was related to his deployment, which included difficulty breathing, problems sleeping, and still feeling tired after sleeping, and the Veteran checked, "No." In November 2007, he completed Health History Questions/Interval History, when asked if he had any recent medical problems or symptoms that were bothering him, he circled, "No." The Veteran claims in his application for service connection that his symptoms began in October 2003. The Board notes that the Veteran sought medical attention for chest pains in October 2003. However, this symptomology was attributed to hypertension and an issue with the left ventricle of his heart, as supported by additional medical testing and the Veteran's family history of heart disease. Even during the treatment for these conditions, the Veteran did not mention trouble sleeping or choking while sleeping, but instead discussed concerns that he was experiencing during certain movements, such as lifting heavy items or attempting to exercise. The Board finds that had the Veteran been experiencing choking in his sleep or other symptoms indicative of sleep apnea, the Veteran would have likely reported it, given that he would regularly seek treatment when having medical issues. Additionally, the Veteran sought medical treatment for other conditions throughout his military career, but did not mention choking while sleeping during these treatments. Leading up to his current diagnosis, in September 2010, the post-service treatment records indicate that the Veteran complained of wheezing and chest tightness that sometimes woke him up. The Veteran reported that the wheezing had just begun in May 2010 and specifically denied wheezing prior to May 2010. He expressed concern about sleep apnea at that time. The onset of wheezing occurred approximately one and one-half years following the Veteran's service discharge, and his statements documented in this treatment record tend to establish that the Veteran's sleep apnea had its onset in 2010, which is after the Veteran's service discharge. The documented statements the Veteran made at that time (in September 2010) to the examiner did not indicate an onset of wheezing and difficulty breathing for several years earlier versus several months. To the extent the Veteran and his friends' lay statements purport to provide the onset of sleep apnea in service by providing statements that the Veteran was snoring and choking during service, the Board finds that the statements the Veteran made during his service are more credible as to what the Veteran was and was not experiencing during service. The Veteran has claimed that his sleep apnea began in approximately October 2003, however, in one of these lay statements, the person states that he noticed the Veteran having issues with snoring and stopping breathing during the Veteran's first period of service, as this person was the Veteran's supervisor from 1998 to 2001. The former supervisor stated that he had to make security changes as a result of the Veteran's snoring and stopping breathing and that roommates complained about his loud sleeping disorder. The Board does not find this lay statement credible. One, this person supervised the Veteran prior to his second period of service, and the Veteran has alleged that his sleep apnea had its onset in October 2003, which is during his second period of service. Two, when the Veteran entered his second period of service in February 2002, he specifically denied wheezing or problems with wheezing, a chronic cough at night, frequent trouble sleeping, or any other illness or injury. The Veteran reported a past medical history for other conditions and symptoms, but he did not document any issues with sleeping or difficulty breathing. The other buddy statement is from someone who served with the Veteran from February 2005 to 2007 and claimed he witnessed the Veteran's loud snoring and unusual choking while the Veteran was sleeping. The Board finds that the statements the Veteran made contemporaneously with service, wherein he denied symptoms that are usually indicative of sleep apnea, are more probative and credible than the allegations being made now while the Veteran is seeking compensation benefits for sleep apnea. The Veteran's in-service reports are especially credible, as the Veteran completed these medical forms while still in service. Additionally, when the Veteran first raised sleep apnea when seen by VA, he reported the onset of breathing symptoms in May 2010, and specifically denied any wheezing prior to May 2010. The Veteran was seeking treatment for these symptoms, and statements made while seeking treatment tend to be highly credible. The Board finds that the lay statements purporting to claim that the Veteran was snoring and choking in his sleep while in service are not credible. The preponderance of the evidence is against a finding that the Veteran had an in-service disease, injury, or event indicative of the onset of sleep apnea. Further, there is a lack of competent and credible evidence of a nexus between the post-service diagnosis of sleep apnea and service. The Veteran's statements that sleep apnea had its onset in service are not sufficient to establish a nexus. To the extent that he is implying he has had these symptoms since service, as already discussed above in detail, the Board finds his statements are not credible. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). The Board finds that the Veteran's claim for service connection for sleep apnea cannot be granted. While there is evidence of a current disability, the Board finds that there is no credible evidence of in-service disease or injury or credible and competent evidence of a nexus between the post service diagnosis of sleep apnea, made in 2011, and the Veteran's service. In conclusion, the most probative evidence of record weighs against the Veteran's claim of service connection for sleep apnea. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for service connection for sleep apnea is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs