Citation Nr: 18146652 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-42 599 DATE: October 31, 2018 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for sinusitis is remanded. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran’s current sleep apnea is related to her period of active duty. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to August 2007, then served in reserve from August 2007 until February 2016. This matter is on appeal from a September 2014 rating decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board of Veterans’ Appeals (Board) previously remanded this matter for further development of record in November 2016. The Veteran testified before a Veteran’s Law Judge in August 2016. A transcript of that hearing has been associated with the claims file. The hearing was before a now-retired judge. A letter was sent in August 2018 to notify the Veteran and to give her an opportunity to request another hearing. The Veteran responded to the letter answering she did not want another Board hearing and requesting to have her case considered on the evidence of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Sleep Apnea At issue is whether the Veteran is entitled to service connection for sleep apnea. The Board concludes the weight of the evidence indicates that the Veteran is not entitled to service connection for sleep apnea. The Veteran asserts that her sleep apnea occurred during her time in service. She has submitted several lay statements from her family and fellow service members in support of her claim. The Veteran’s STRs do not have any dates which the Veteran was treated for sleep apnea or reports difficulty sleeping. At the August 2016 hearing, Veteran states that her mother and fellow service members observed her having issues sleeping, including observations of snoring and “stopping breathing in her sleep.” Lay statements of these occurrences have been provided. The Veteran filed her claim for sleep apnea in April 2013. In a December 2014 VA hospital visit, the Veteran requested a sleep study after her boyfriend observed her with “sleep apnea.” The February 2015 VA sleep study diagnosed the Veteran with obstructive sleep apnea (OSA), and later visits to VA hospitals in May 2015 also diagnosed her with sleep apnea. Pursuant to the Board’s August 2016 remand to develop the record, a VA examination was held in April 2018 by a VA neurologist. The VA examiner   opined that the Veteran’s sleep apnea is not at least likely as not that the sleep disorder occurred in active service. The examiner reasoned: The Veteran was diagnosed with OSA as of a sleep study done in February 2018. This diagnosis was made after active duty time and not during ACDUTRA time; the Veteran’s active service was between August 2003 and August 2007. According to medical records reviewed, the Veteran weighed 136 pounds at the time of enlistment and 165 pounds at the time active service ended. The Veteran’s weight at the time the diagnosis of sleep apnea was made was 189 pounds. Combined with the Veteran’s height of 5’ 6”, the Veteran’s BMI at the time of diagnosis would calculate to 30.5, within the “obese” range. The VA examiner states that obesity is a prominent risk factors for OSA, therefore making obesity the more likely cause for OSA instead of its onset in active service. The VA examiner opines that the Veteran did not have actual sleep apnea during service; if she did, the VA examiner believes the Veteran would have had the condition prior to entry of service, but there is no test for sleep apnea prior to joining service. The April 2018 examiner also considered the April to August 2016 buddy statements that observed Veteran’s snoring, sleep difficulty, and periods which she “stopped breathing during sleep” during her active service period. The examiner states that snoring and sleep difficulty is not diagnostic for sleep apnea. Snoring does not confirm the diagnosis of sleep apnea, and such diagnosis can only be made through a sleep study. The examiner describes the statements describing where the Veteran “stopped breathing during sleep” as questionable. The Board finds the April 2018 VA examination to have significant probative weight here. The examiner reviewed the claims file, considered the Veteran’s reported history and lay statements, and supported his conclusions with clear rationale. As part of the rationale, the VA examiner noted the weight gain of the Veteran between the end of her active service and her diagnosis for OSA, the lack of reports for sleep apnea during active service, and noted that the onset of her condition leading to diagnosis occurred after her active service period. The VA examiner addressed the Veteran’s contentions in this case and relied on his expertise to complete his opinion. The Board recognizes the Veteran’s offered lay statements regarding her sleep apnea. The Veteran is certainly competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, as a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions on this issue, as this is a medical determination that is complex. The Veteran has not contended, and the evidence does not show, that she has the medical expertise to provide such opinions. Thus, the lay opinions by themselves are outweighed by the VA examiner’s findings. The Board recognizes the Veteran’s offered buddy statements on the Veteran’s sleep apnea. However, while they can describe witnessing behavior and symptoms, they also lack the training or expertise to render a competent opinion or diagnosis. The Board finds their reports outweighed by the VA medical opinion discussed above. The Board finds that the evidence of record does not support a finding of service connection for sleep apnea. The Veteran was diagnosed with sleep apnea, but not until 2015, years after the Veteran’s active service. The STRs do not show any dates which the Veteran was treated or diagnosed for sleep apnea. The representative referred to the April 2018 examiner’s opinion in support of her claim, however the opinion is against a finding of service connection for sleep apnea. Given the Board’s findings regarding the competency and credibility of the lay evidence above, the Board considers the reliance on medical evidence appropriate. The Board gives this opinion considerable probative weight. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for sleep apnea is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). REASON FOR REMAND The Veteran asserts that her sinusitis occurred during her time in service. Based on a review of the May 2018 VA examination report, the Board finds that additional examination and opinion is necessary before adjudicating the Veteran’s claim. Pursuant to the Board’s August 2016 remand to develop the record, a VA examination was held in March 2018. The VA examiner concluded that the Veteran had sinusitis, that it was reported in her period of service, and it was at least likely as not aggravated by the service-connected rhinitis. A request for clarification was issued for this examination, asking the physician to state what dates in service the Veteran was treated for sinus issues, and provide medical rationale as to how the service connected rhinitis aggravated the sinusitis. On May 2018, another VA examiner provided a clarification to the March 2018 opinion because the March 2018 VA examiner was not available. Upon review of the available examinations and medical records, the May 2018 VA examiner disagreed with the March 2018 VA examiner’s opinion; the May 2018 examiner found the sinusitis as a separate and distinct disorder from the service connected rhinitis. Although the May 2018 VA examiner addresses the issue whether the Veteran’s sinusitis was caused by service, the VA examiner did not address whether the Veteran’s service-connected rhinitis aggravated the sinusitis. Therefore, a remand is necessary to obtain a clarification opinion to answer this issue. Where VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet App. 303, 311 (2007). Inadequate examinations and opinions include those that provide insufficient supporting rationale or contain only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the May 2018 VA examination was inadequate due to its failure to provide rationale addressing whether the Veteran’s sinusitis was aggravated by her service-connected rhinitis. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain a clarification opinion from the May 2018 VA examiner to determine whether it is as likely as not (a 50 percent or greater probability) that the Veteran’s sinusitis disability was aggravated by her service-connected rhinitis. The examiner must provide a complete rationale for all opinions expressed. 3. Readjudicate the issue on appeal. If it remains denied, issue a Supplemental Statement of the Case and provide the appropriate opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk