Citation Nr: 18155544 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-53 677 DATE: December 4, 2018 ORDER Entitlement to service connection for sleep apnea syndrome is denied. FINDING OF FACT A sleep apnea syndrome disability was not manifest during active service, and is not shown to be casually or etiologically related to an-in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea syndrome have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 1994 to January 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office in Seattle, WA. In his October 2016 VA Form 9, the Veteran timely perfected this appeal, no hearing request was made. 1. Entitlement to service connection for sleep apnea syndrome The Veteran contends that his sleep apnea is the result of years of shift work and rotating sleep patterns during his active military service with the Navy. The Veteran filed an Informal Hearing Presentation (IHP) in June 2018 asserting that his sleep apnea is a result of years of shift work ad rotating sleep patterns while serving with the Navy. He currently receives treatment for the condition and has been issued a CPAP machine. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Veteran received his initial diagnosis of sleep apnea in November 2015 after a sleep study accomplished by the Sleep Institute of San Antonio. (See Medical Treatment Record Non-Government Facility, February 2016). Hence, the first element of service connection is satisfied. However, the Veteran’s service treatment records (STRs) are negative for complaints, treatments, or a diagnosis of sleep apnea. A pre-induction physical examination in in July 1993 is silent for any history, complaints or treatment of sleep apnea. In fact, the Veteran denied having any frequent trouble sleeping. Likewise, throughout various physical examinations during service the Veteran reported good health and denied having any frequent trouble sleeping. (See Service Treatment Records, December 1998, January 2000, April 2004.) A separation examination dated December 2005 notes the Veteran’s in-service medical history of: sensitivity to rubber which would cause dermatitis; complaints of right knee pain in September 1997; verruca vulgaris in August 1998; vasectomy in June 2000; use of corrective lenses for many years until his in-service bilateral refractive surgery in 2003; heart palpitations assessed as most likely benign in etiology in April 2003; high blood pressure evaluation in 2003; left rotator cuff tendinitis in January 2004; seasonal allergies accompanied with allergic rhinitis in April 2004; and mild hyperchloesterolemia in December 2005. In fact, in his separation examination, in December 2005, the Veteran declared no breathing problems of any kind, denied frequent trouble sleeping, and claimed to be in good health. (See Service Treatment Records, December 2005.) Thus, the evidence of record fails to show that the Veteran had sleep apnea during service or upon his discharge from service. The Veteran has not been afforded a VA examination in connection with his claim for service connection for sleep apnea disorder; however, the Board finds that an examination is not warranted. An examination or medical opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is unnecessary to decide the claim because, as discussed above, the Veteran’s service treatment records are negative are negative for any complaints, treatment or diagnosis of sleep apnea, and he has not identified any injury, disease, or event in service. Rather, he has asserted that the disorder should be service-connected. Therefore, because there is no event, injury, or disease in service to which a current disorder could be related, the Board finds that a VA examination is unnecessary in this case. 38 C.F.R. § 3.159(c)(4)(i) (2017); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). In addition, the Veteran’s post-service treatment records are negative for any reports or diagnoses of sleep apnea until 2015, nine years after service separation. A clinical note from the San Antonio VA Clinic from September 2015 denotes the Veteran was counseled about his weight, specifically, the clinician noted discussed the health risks of overweight and obesity includes sleep apnea, among other named conditions. The Veteran was offered participation in ta weight management program; however, he declined. (See CAPRI Records, September 2015). A sleep evaluation consultation was requested in October 2015. Thereafter, in November 2015, the Veteran was assessed with obstructive sleep apnea, moderate severity, and central sleep apnea, not Cheyne-Stokes, mild severity. Board notes the clinician did not provide an etiology opinion, but noted that the Veteran had a history of work shift disorder, snoring, poor sleep quality and symptoms of excessive daytime sleepiness. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran avers that he was stationed in a remote location where sleep study resources were not available, and consequently, he was discharged without any ability to test his sleep study patterns. He claims that after leaving the remote location, he moved to Texas and immediately requested a sleep study. Furthermore, he claims that at the time of separation he had inadequate sleep patterns, high blood pressure, constant headaches, and states that he would get up at all times of the night and fall asleep at work during the day. (See VA Form 9, March 2016). The Veteran’s lay statements are competent and credible insofar as they report observable symptoms, such as a lack of sleep and inconsistent sleep patterns. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that the Veteran asserts that an opinion that his sleep apnea is etiologically related to his military service, such statements are of little probative value, as the Veteran lacks the medical expertise to diagnose complex or internal medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a) (2017). As discussed above, the Veteran’s service treatment records demonstrate that throughout active service and at time of service separation there was no history of complaints or treatment regarding any sleep apnea or related symptoms, including inadequate sleep patterns, the claimed constant headaches. As to the claim of elevated blood pressure, the service treatment records denote that the Veteran was observed for hypertension in 2003 with no subsequent follow-up. Moreover, post-service private treatment records establish the first recorded sleep apnea complaints occurred at the earliest in 2015, nine years after service separation. (Continued on the next page)   Therefore, the Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d) (2017). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Accordingly, the claim must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel