Citation Nr: 18151875 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-40 721 DATE: November 20, 2018 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran is currently diagnosed with obstructive sleep apnea (OSA); the currently diagnosed OSA did not have its onset during, and is not otherwise etiologically 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, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from September 1988 to September 1991. Service Connection for Obstructive Sleep Apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. The Veteran is currently diagnosed with obstructive sleep apnea, which is not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that OSA developed during military service and that he snored so loud during service that other servicemembers would throw things at him. See August 2016 VA Form 9. Alternatively, the Veteran contends that OSA developed as a result of being exposed to burn pits, sand storms, and oil fires while stationed in Southwest Asia during active service. See February 2016 Notice of Disagreement. Initially, the Board finds that the Veteran is currently diagnosed with OSA. See November 2015 VA examination report. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the current OSA did not have its onset during service, and is not otherwise etiologically related to service, including to any hazardous environmental exposure during service in Southwest Asia. Service treatment records do not reflect any complaints, symptoms, or diagnosis for OSA or any other sleep-related issues or symptoms. The earliest evidence of OSA appears in a post-service February 2012 VA treatment record wherein the Veteran reported sleep apnea by history, even though he had not undergone a sleep study at that time. The earliest evidence of a sleep apnea diagnosis confirmed by a sleep study was shown in 2013, approximately 22 years after service separation in 1991. Considered together with the lay and medical evidence contemporaneous to service showing no sleep apnea symptoms, the approximate 21-year period between service separation in 1991 and the onset of sleep apnea symptoms approximately in 2012 is an additional factor that weighs against service incurrence. Additionally, a VA examination in November 2015 examination report contains the VA examiner’s opinion that it is less likely than not that the current OSA is etiologically related to active service, to include any environmental exposure during service in Southwest Asia. The VA examiner explained that OSA is a medical condition with a clear and specific etiology and diagnosis, and is caused by the narrowing and collapse of the upper airway during sleep. The VA examiner noted the record does not reflect any sleep problems or fatigue during service in Southwest Asia and that the Veteran first complained of fatigue and OSA-related symptoms in 2012. At the time, there appeared to be a possible association between OSA and non-service-connected sinus symptoms and a 2010 post-service sinus surgery. The VA examiner further explained that it is highly unlikely that environmental exposures in Southwest Asia in 1991 would result in OSA symptoms over 20 years later, especially when no symptoms were reported at the time of acute exposure. Finally, the November 2015 VA examiner noted the Veteran has multiple non-service-related risk factors for developing OSA, including increasing body mass index, male gender, advancing age, nasal congestion, upper airway abnormality, and prior tobacco and alcohol use. The Board has considered the Veteran’s competent lay account of snoring during and since service, and the Veteran’s spouse’s lay account of observing sleep apnea symptoms ever since they met in December 1991 (after service separation); however, because the accounts are inconsistent with, and outweighed by, the lay and medical evidence contemporaneous to service showing no OSA or sleep-related symptoms or diagnosis during service, and post-service lay and medical evidence showing an onset of sleep apnea in 2012, approximately 21 years after service, they are not deemed credible, so are of no probative value. For these reasons, the Board finds that the preponderance of the evidence demonstrates that the criteria for service connection for OSA have not been met. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel