Citation Nr: 18139987 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-24 701 DATE: October 2, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran’s sleep apnea did not manifest in service and is not otherwise related to his military service. CONCLUSION OF LAW Sleep apnea was not incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to August 1997. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In March 2016, the Board remanded the case for further development. The case has since been returned for appellate review. Thereafter, in April 2018, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA). In June 2018, a VHA opinion was obtained. The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903. The VHA opinion does not require a waiver of initial Agency of Original Jurisdiction (AOJ) review. Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317, 1319-20 (Fed. Cir. 2005); 38 C.F.R. §§ 20.901, 20.903 (2017). The Board also notes that there are VA records that were added to the claims file after the April 2016 supplemental statement of the case (SSOC) for which there is not an automatic waiver of initial AOJ consideration. 38 U.S.C. § 7105(e) (automatic waiver of new evidence does not apply to evidence developed by VA). However, the Board finds that the additional vocational rehabilitation records and VA treatment records are not relevant to the issue on appeal. The crux of the appeal is whether the Veteran’s sleep apnea is related to his military service; his current treatment and diagnosis are not at issue. The additional records do not discuss the Veteran’s military service or the onset of his sleep apnea. Thus, the additional evidence does not materially alter the outcome of the case. Accordingly, the Board finds that a remand for initial AOJ review of this evidence is not necessary, and there is no prejudice to the Veteran in proceeding with adjudication of the claim. See 38 C.F.R. § 20.1304(c) (2017) (“Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.”). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Law and Analysis Neither the Veteran nor his 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 a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Sleep apnea is not an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on “chronic” symptoms in service, and “continuous” symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for sleep apnea is not warranted. The Veteran has asserted that his sleep apnea began in service. He has stated that he began experiencing symptoms before his diagnosis, but noted that he was not previously aware of the condition. See, e.g., July 2014 VA Form 9. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of sleep apnea. VA treatment records dated in April 2000 also show that he denied having any sleep disturbances. The earliest reference to sleep apnea symptoms in the post-service medical records was in August 2006, which was nine years after his separation from service. In August 2006, the Veteran complained of waking up frequently, feeling tired in the morning, and daytime sleepiness. He reported that his girlfriend told him that he sometimes choked in his sleep or stopped breathing for short periods. Similarly, in December 2006, he complained of awakening from sleep choking and spluttering, feeling tired upon awakening, and nodding off during the day. He also reported that he snored loudly. It was noted that he needed to be scheduled for a sleep study to rule out possible sleep apnea. In August 2007, the Veteran presented with complaints of sleep disturbances since 1995, approximately twelve years prior. He was first diagnosed with obstructive sleep apnea in 2008 following a sleep study. The Veteran has asserted that he developed sleep apnea early in his military service, possibly even as far back as basic training. With regard to other lay statements of record, the Veteran’s father, C.C. (initials used to protect privacy), indicated that the Veteran came back to live with them in 2007. C.C. described frequent daytime napping, loud snoring, choking, and gasping for air. He indicated that he also suffers from sleep apnea and advised his son to see a doctor. See January 2010 lay statement from C.C. J.L. worked with the Veteran for a private contractor in Kuwait from December 2004 to April 2006. According to J.L., the Veteran would wake up at night gasping for air and snoring loudly. He had swollen and red eyes and would often fall asleep during the daytime. See January 2010 lay statement from J.L. F.H., a longtime friend of the Veteran, related that her husband served with the Veteran and were best friends. F.H.’s husband told her that the Veteran snored loudly and choked while sleeping in service. When he occasionally stayed at their house overnight, she would sleep at her girlfriend’s house next door because of his loud snoring. F.H. described snoring, gasping, and choking for air. The Veteran would take cat naps all the time and doze off. F.H. also stated that she is a nurse and has family members who suffer from the same sleep disorder. See February 2010 lay statement from F.H. at 1. The Board does acknowledge the lay statements that the Veteran’s symptoms began in service and continued since that time. The Board notes that the Veteran and other laypersons are competent to report his experience and symptoms in service and since that time. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Nevertheless, the Board notes that only the Veteran’s and F.H.’s lay statements pertain to symptoms during service. Both C.C.’s and J.L’s lay statements describe symptoms years after the Veteran’s discharge. Moreover, as noted above, the Veteran did not complain of sleep problems and was not diagnosed with sleep apnea in service, and VA medical records dated in April 2000 indicated that the Veteran did not have a sleeping problem. Indeed, he first complained of symptoms in 2006, which was nine years after service. In addition, even assuming that the Veteran did experience some symptoms in service, as discussed in more detail below, a VHA examiner explained that such symptoms are not necessarily indicative of sleep apnea at that time. For these reasons, the Board finds that sleep apnea did not manifested in service. In addition to the lack of evidence showing that the claimed disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current sleep apnea to the Veteran's military service. A March 2016 VA examiner indicated that the Veteran has obstructive sleep apnea with the cause being obstruction in the area of breathing. He opined that there is less than a 50 percent probability that the Veteran incurred obstructive sleep apnea in service. In so doing, he noted that the Veteran was not seen in service for the condition and was not diagnosed until approximately 10 years after his military service. Although he indicated that he had reviewed the lay statements, the examiner did not address whether the symptoms described during service would have been indicative of sleep apnea at that time. Thus, the Board finds that the opinion has limited probative value. In April 2018, the Board requested a VHA medical opinion to address the etiology of the Veteran’s sleep apnea. A VHA medical expert opinion was received in June 2018 from Dr. J.H., a staff physician for pulmonary critical care sleep medicine at the Palo Alto VA health care system. Dr. J.H. determined that the most likely etiology for the Veteran’s sleep apnea was documented weight gain that occurred since his military service. Dr. J.H. explained that obesity is a well-established risk factor for obstructive sleep apnea and noted that the Veteran gained approximately 70 pounds since active duty service. The Veteran had also reported that his symptoms improve with weight loss. Therefore, Dr. J.H. opined that it is more likely than not that his obstructive sleep apnea is due to weight gain/obesity that began after his separation from service. Dr. J.H. also stated that the reported symptoms, including snoring, difficulty sleeping, excessive daytime sleepiness, and gasping for air, are non-specific symptoms that can occur from multiple causes other than sleep apnea, including non-sleep related causes such as chronic pain, comorbid psychiatric disorders, and substance abuse as reported in this Veteran. Id. at 8-9. In particular, habitual snoring is very high in the general adult population, and most snorers do not have sleep apnea. Habitual snoring may worsen with age and is also linked to obesity, even in the absence of sleep apnea. Even witnessed apneas and nocturnal gasping/choking are considered non-specific symptoms. According to the American Academy of Sleep Medicine and the International Classification of Sleep Disorders, 3rd Edition (ICSD-3), an adult could have up to 40 witnessed apneas during sleep (assuming an 8-hour sleep period) and still be considered normal (and without obstructive sleep apnea). A diagnosis of obstructive sleep apnea can only be confirmed following a valid diagnostic sleep study. There is no medical opinion otherwise relating the Veteran’s current sleep apnea to his military service, including any symptomatology therein. The Board affords substantial probative weight to the June 2018 VHA opinion. The examiner reviewed the claims file and medical literature. He also has training, knowledge, and expertise on which he relied to form his opinion. In addition, he specifically addressed these lay statements and contentions and provided a thorough rationale for the conclusion reached. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran’s claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel