Citation Nr: 18152153 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-42 381 DATE: November 21, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against the finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1986 until January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his July 2016 Notice of Disagreement, August 2016 Substantive Appeal and the January 2018 Appellant’s brief, the Veteran clarified that he is appealing only the issue of service connection for sleep apnea. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, 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 Veteran 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. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Turning to the evidence of record, the Board notes that the December 2017 VA examination reflects a diagnosis of sleep apnea. Therefore, the current disability element is met. Regarding the second element of service connection, in-service incurrence of a disease or injury, the Board notes that the Veteran’s service treatment records do not reveal complaints, diagnosis, or treatment for sleep apnea. In December 1988, the Veteran complained of insomnia but the diagnosis was adjustment disorder. As to the third element of service connection, evidence must show a nexus between a current disability and an in-service incurrence of an injury or disease. The Veteran contends that his sleep apnea started in active service. In September 2016, he submitted a statement from his former roommate during active service, who attested that the Veteran would snore, stop for a bit, take in a deep breath, and then snort as if he was starting to breathe again. The VA examiner in December 2017, however, concluded that the review of the service treatment records showed no evidence of a diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty. He explained that observed snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing, and insomnia are not pathognomic for sleep apnea. The examiner clarified that people often will have episodes of gasping or brief times of stopping breathing, however, less than 5 hours is considered normal. Insomnia is not a sign of sleep apnea and the two are mutually exclusive. Insomnia is typically followed by daytime sleepiness, low energy, irritability, and a depressed mood. In contrast, people with sleep apnea have no trouble falling or staying asleep. The examiner then concluded that the Veteran’s sleep apnea condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The probative value of a medical opinion is based on the medical expert’s knowledge and skill in analyzing the data and the examiner’s medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board accords great probative weight to the December 2017 VA examination as it is predicated with a detailed review of the Veteran’s records, including his in-service medical records, the Veteran’s and other lay statements and post-service VA treatment records. The medical examiner provided a clear explanation as to why the Veteran’s in-service symptom of insomnia and the September 2016 lay statement regarding the Veteran’s in-service snoring habits were unlikely related to the Veteran’s current diagnosis. Moreover, the medical expert had knowledge of the relevant facts and addressed the Veteran’s contentions. See Nieves-Rodriguez, 22 Vet. App. 295 at 304 (2008) (the probative value of a medical opinion is determined by whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof). The record does not reflect any other medical opinion regarding the nexus between the Veteran’s current disability and his in-service symptomatology. The Board has also considered the Veteran’s assertion that his sleep apnea had its onset in service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, it is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran and his former roommate are competent to describe his symptoms, the Board finds that the question regarding the potential relationship between the Veteran’s sleep apnea and any in-service symptoms is complex in nature, and therefore, as a layperson merely providing a generalized statement establishing a connection between his sleep apnea and in-service symptoms is insufficient. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions). Accordingly, a greater weight will be placed on the medical expert’s opinion. The Board is sympathetic to the Veteran’s claim. However, based on the relevant evidence of record, the Board finds that service connection is not warranted for sleep apnea. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. For these reasons, the claim for service connection for sleep apnea is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lee, Associate Counsel