Citation Nr: 18156876 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-25 716 DATE: December 11, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the probative evidence is against finding that the Veteran’s obstructive sleep apnea began during or is otherwise related to active service. CONCLUSION OF LAW Obstructive sleep apnea was not incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to May 1981. In July 2016, the Veteran submitted additional evidence. Automatic waiver applies. 38 U.S.C. § 7105(e). Entitlement to service connection for obstructive sleep apnea In April 2015, VA denied entitlement to service connection for obstructive sleep apnea. The Veteran disagreed and perfected this appeal. She contends that her sleep apnea began during service but was not diagnosed until years later. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service treatment records are negative for any complaints or findings of sleep apnea. The Veteran was treated for acute tonsillitis in December 1975 and acute pharyngitis in July 1977. No further treatment was shown and on examination for separation in May 1981, the Veteran’s mouth and throat and lungs and chest were normal on clinical evaluation. Pulmonary function tests were also normal. Records dated in May 2014 include an impression of primary snoring. The physician noted that review of a previous polysomnogram from 2011 would allow for a diagnosis of mild obstructive sleep apnea based on current criteria and reevaluation was needed. The following week another polysomnogram was conducted which confirmed a diagnosis of mild REM related obstructive sleep apnea. In January 2015, the Veteran reported she was treated for tonsillitis and pharyngitis during service and that she was having obstructed breathing and difficulty staying awake while on duty. She further reported loud snoring and waking up with difficulty breathing, and that at that time these ailments were not identified or known as sleep apnea symptoms. In January 2015, the Veteran’s spouse submitted a statement indicating that he had witnessed her breathing obstruction and excessive snoring for 40 years. He stated that he first thought she was just a snorer but as the years went by he became concerned that it was more than a snoring problem. On several occasions he believed she stopped breathing for a moment. He further stated that obstructed sleep apnea was one of the top misdiagnosed diseases, especially during the mid-1970’s. In March 2015, a VA physician, Dr. W.O., who serves as an internist, reviewed the Veteran’s records and opined that her obstructive sleep apnea was less likely than not incurred in or related to service. The examiner provided extensive rationale noting that she was diagnosed with sleep apnea over 30 years after separation. The examiner discussed the statements from the Veteran and her spouse and noted that acute tonsillitis and acute pharyngitis are not chronic conditions, are not evidence of sleep apnea during service, and do not progress to sleep apnea. Although the Veteran reported a history of snoring, apnea, and other symptoms that can be associated with sleep apnea, they are not diagnostic and can occur in individuals without sleep apnea. Thus, the mere presence of these symptoms during service is not evidence that obstructive sleep apnea existed. The physician stated that based on the diagnostic criteria, an individual can stop breathing almost five times per hour while asleep and this would be considered normal and not meet the diagnostic criteria for sleep apnea. A June 2015 statement from Dr. L.R., an emeritus professor of clinical medicine, division of pulmonary and critical care medicine, indicates that the Veteran was under his care for a variety of pulmonary conditions including obstructive sleep apnea first diagnosed by polysomnography in May 2011. The symptoms that prompted evaluation were historically present for most of her military service. He further stated that it was likely this was a preexisting condition that at that time was not well recognized and went undiagnosed during service. In May 2016, VA obtained an additional opinion. Following review of the record, Dr. W.O. discussed the June 2015 medical statement and indicated that what the opinion means was not clearly stated but will be assumed to mean that obstructive sleep apnea preexisted her actual diagnosis as far back as military service that ended in 1981. Dr. W.O. further stated that a span of 33 years between military service and the diagnosis of obstructive sleep apnea is extraordinarily long and represents more than half of the Veteran’s current lifetime. On this basis alone, the possibility that the Veteran’s obstructive sleep apnea began in service is much less than 50 percent probability. Dr. W.O. further discussed that the simple presence of snoring and apnea does not establish that obstructive sleep apnea existed in service. In June 2016, Dr. L.R. submitted an additional statement. He noted that the Veteran’s symptoms significantly predated her laboratory studies and were noted by her and her husband during her period of active service. He stated that: In view of the natural history of this disease, the constancy of her long-standing symptoms, the absence of a very significant interval weight gain I would state that it is certainly more likely than not that this is a chronic condition that went undiagnosed while on active duty as it was not well recognized at that time. As set forth, there is evidence of current disability. The question is whether it is related to active service. Both the Veteran and her spouse submitted statements indicating that she experienced snoring and perceived apneas during service. The Board acknowledges that they are both competent to report this information. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). They are not, however, competent to provide a diagnosis of sleep apnea or a medical etiology opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Regarding nexus, the record contains evidence both for and against the claim. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. 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. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). On review, Dr. L.R. appears to be a pulmonary specialist. His June 2015 opinion is somewhat unclear and not accompanied by adequate rationale. Notwithstanding, it seems to suggest that the Veteran’s sleep apnea began during service. The June 2016 statement from Dr. L.R. provides a positive nexus opinion based on the natural history of the disease, longstanding symptoms, and “the absence of a very significant interval weight gain”. There is no indication that Dr. L.R. reviewed the Veteran’s records. In this regard, the Board notes that the Veteran weighed 125 pounds at separation from active duty in May 1981 and was 180 pounds at the time of the May 2014 polysomnogram. This indicates a 55-pound weight gain and thus, the opinion appears to be based at least in part on an inaccurate factual premise (no significant interval weight gain). Accordingly, it is not considered probative. Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The Board finds the VA opinions highly probative. They were based on a review of the record, to include consideration of lay evidence, and are supported by adequate rationale. In summary, the preponderance of the most probative evidence is against the claim. Hence, the claim is denied, and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel