Citation Nr: 18148423 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-39 205 DATE: November 7, 2018 ORDER Service connection for sleep apnea is granted. INTRODUCTION The Veteran served on active duty from July 1978 to October 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDING OF FACT The Veteran’s sleep apnea began during active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The evidence of record amply demonstrates a current diagnosis of obstructive sleep apnea. The salient analysis in this case concerns contradictory etiological opinions. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). In March 2015, the Veteran underwent a VA examination in order to ascertain the presence of sleep apnea and, if so, whether it was etiologically related to his active duty. After reviewing the evidence of record, administering a clinical evaluation, and interviewing the Veteran, the examiner rendered a diagnosis of obstructive sleep apnea. The examiner then concluded that it was less likely than not (a less than 50 percent probability) that the Veteran sleep apnea was incurred in or caused by his active duty. In support of this opinion, the examiner provided the following opinion: The [V]eteran’s [service treatment records] and subsequent records document height of 5 [feet] 9 [inches] and weight ranging from 190 (near [military] retirement) and 231 (at the time of first sleep study 11 years after retiring), 244 before bariatric surgery and 180 in 2013. The number one risk factor for sleep apnea is weight. The [V]eteran gained 30 [to] 40 pounds after retiring and before being tested for sleep apnea for the first time. Without other information, it must be concluded that this weight gain was responsible for the development of the condition. The Board finds that the probative value of the March 2015 VA examiner’s opinion is reduced because it fails to discuss lay statements of record regarding in- and post-service symptoms or the positive etiological opinion provided by a private medical provider (discussed below). Further, the examiner indicates that additional information may alter the rendered opinion, but does not identify what that information is or might be. In order to attempt to reconcile the March 2015 VA examiner’s opinion with the private etiological opinion, the RO obtained a second opinion from a different VA examiner in June 2016. After reviewing the evidence of record, the examiner opined as follows: The [V]eteran was diagnosed with severe sleep apnea via sleep study performed…on [June 18, 2009] which demonstrated….severe sleep apnea. After undergoing bariatric surgery and losing significant weight a repeat sleep study on [May 23, 2013] demonstrated…moderate sleep apnea (a significant reduction)…At the time of his discharge he weighed 190 [pounds] for a [body mass index] of 28.1 which is overweight[;] however at the time of 2009 sleep study he weighed 231 [pounds] for a [body mass index] of 34.1 which is class 1 obesity. Obesity is the number one risk factor for [obstructive sleep apnea] and is likely the driving cause for this patients [sic] sleep disordered breathing as evidenced by the fact that [clinical testing improved] after losing weight subsequent to bariatric surgery. Additionally, age is a significant risk factor for sleep apnea. The patient was diagnosed almost 20 years after being discharged when he was almost 60 years old. There is a much higher incidence of [obstructive sleep apnea] in the 60+ populations than in the 40 and under population [cite omitted]…Lastly, while the patients [sic] submitted Buddy statements are appreciated, on review of his [service treatment records] there is no documented reports of sleep disordered breathing [to] indicate he had [obstructive sleep apnea] while in the service. Therefore, given the length of time between discharge and diagnosis, lack of documented symptoms during service and significant weight gain prior to diagnosis[,] it is less likely than not (less than 50 [percent]) that the patients [sic] [obstructive sleep apnea] was caused by or incurred during his time in the service. The Board finds the June 2016 is not probative because the examiner erroneously stated that the Veteran was first diagnosed 20 years after his retirement from service. Indeed, the length of time between the Veteran’s military service and his first diagnosis appears to be a critical aspect of the examiner’s opinion. Contrary to the examiner’s opinion, however, the evidence establishes that the Veteran was first diagnosed with sleep apnea in 2009, which is approximately 11 years after his military retirement, not 20. Opinions predicated on an incomplete or incorrect factual basis are not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In support of his claim, the Veteran submitted separate opinions from Cheryl L. Spinweber, Ph.D., both of which are lengthy and will not be reiterated in their entirety here. Dr. Spinweber identified herself as a Board Certified Sleep Specialist and a Diplomate of the American Board of Sleep Medicine, as well as the Founding Sleep Medicine Specialist and the Founding Clinical Director of the Scripps Mercy Sleep Disorders Center. She then stated that the Veteran was referred to her in 2009. Ultimately, the doctor opined, in pertinent part, as follows: Sleep apnea is caused by obstruction of the upper airway during sleep. It is a disorder that is influenced by the structure of the individual’s airway, having a relatively large or heavy neck compared to overall body build, the relaxation of the muscles during sleep, aging, loss of tone in the upper airway, and weight gain, as well as other factors. Sleep apnea does not come on suddenly but slowly develops and worsens, usually over many years. The development of sleep apnea takes place over the course of an individual’s adulthood, usually beginning with snoring in a young man and gradually worsening, with more frequent breathing pauses, more oxygen desaturation episodes, more sleep impairment, and cardiac involvement, including bradytachyarrhythmias. My expert opinion is that this individual’s sleep apnea took 20 [to] 25 years to develop. Given the individual’s obstructive sleep apnea as documented in his sleep study in 2009 and given his medical history, this individual surely did have sleep apnea during his active duty years. During his active duty years, the individual was told by others that he snored persistently during sleep and he was observed to have trouble breathing when asleep. He did not know that it was abnormal to snore and he did not realize that he was having repetitive breathing pauses during sleep. He thought that his poor sleep quality and his fatigue were due to his duty schedule and he did not suspect until later in his life that he actually had a significant disorder of sleep. Persistent snoring, observed breathing difficulties, poor sleep quality, and daytime sleepiness are all symptoms of obstructive sleep apnea. The probative values of the VA examiners’ etiological opinions of record are reduced for the reasons discussed above. However, the Board is persuaded by Dr. Spinweber’s opinion, especially given that she considered the lay statements of record, considered weight gain as a risk factor, and is a practicing expert in the field of sleep disorders. The record is otherwise negative for evidence that disassociates the Veteran’s sleep apnea from his active duty. Consequently, the Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection for sleep apnea is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel