Citation Nr: 18157882 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-17 142 DATE: December 13, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT Sleep apnea did not manifest in service and is not attributable to service or is otherwise related to any period of inactive duty for training (INACDUTRA). CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service or INACDUTRA. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to April 1995, February 2004 to April 2005, and August 2006 to April 2007. He also had INACDUTRA. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On the Veteran’s substantive appeal dated April 2016, he requested a hearing before a Veterans Law Judge. However, in a statement dated November 2018, he cancelled his hearing request. Accordingly, his request for a hearing is considered to be withdrawn and his claim will be reviewed based on the evidence of record. In addition, the Board recognizes that additional VA treatment records have been associated with the claims folder since the time of the last adjudication of the claim by the Agency of Original Jurisdiction (AOJ). Although these records did not include a waiver of initial review by the AOJ, the information submitted was entirely duplicative of information of record at the time of the final AOJ adjudication of the claim. As such, a remand for initial AOJ consideration is not necessary. The Board also observes that Social Security Administration (SSA) records have been associated with the claims folder that were accompanied with a waiver of AOJ consideration. The Board notes that the Veteran’s claims of entitlement to increased disability ratings for diabetic neuropathy of the right and left lower extremities were remanded by the Board in November 2014 for evidentiary development. Following the remand and prior to recertification of these claims to the Board, the Veteran withdrew these issues in February 2016. Therefore, the Board will not address these claims herein. Service connection for sleep apnea The Veteran contends that he has sleep apnea that is related to his service. He has not contended that the sleep apnea is related to any period of INACDUTRA. Regardless, there is no proof that apnea is a residual of injury and service connection would not be warranted based upon a period of INACDUTRA. Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection is warranted for an injury incurred or aggravated during a period of inactive duty for training (INACDUTRA). 38 U.S.C. § 101(24)(C) (2012); 38 C.F.R. § 3.6(a) (2017). In contrast, service connection may be granted for an injury or disease incurred or aggravated during a period of ACDUTRA. 38 U.S.C. § 101(24)(B) (2012); 38 C.F.R. § 3.6(a) (2017). The Board notes that the Veteran has not claimed that his disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran’s available service treatment records are absent complaints of or treatment related to sleep apnea during service. However, the Veteran contends that during service, he snored and was tired during the day. In this regard, the Board notes that the Veteran is competent to attest to snoring during service and feeling tired during the day. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran as a lay person is competent to report snoring and feeling tired during service. The Board notes that a VA examination report dated March 2016 documents a diagnosis of sleep apnea with an onset in November 2011. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s current sleep apnea is related to his service. Specifically, the Veteran was provided a VA examination in March 2016. The VA examiner noted the Veteran’s report of a history of snoring at night and feeling sleepy during the day. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with obstructive sleep apnea and opined that it is less likely than not that the Veteran’s sleep apnea is related to service. The examiner’s rationale for his conclusion was based on his finding that the available service treatment records were absent symptoms that may be suggestive of or consistent with sleep apnea. The examiner also reported that there was no post-service evidence of complaint or note of loud snoring, apneic episodes or daytime somnolence until a consult for sleep study was placed in September 2011. The examiner further noted that review of the Veteran’s service treatment records until the present time indicated an increase in weight of over 60 pounds. He reported that weight gain in the greatest risk factor for the development of sleep apnea, and the Veteran reached an historic high weight at time of his sleep study and diagnosis of sleep apnea. The examiner opined that this was likely the precipitating factor in the Veteran’s development of sleep apnea, and this occurred years after his active service. The March 2016 VA examination was based upon thorough analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of in-service symptomatology consistent with obstructive sleep apnea for multiple years after separation from active service. The examiner also noted the Veteran’s report of snoring at night and feeling sleepy during the day and further indicated that these sleep apnea symptoms were attributed to the Veteran’s obesity. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that his current sleep apnea is not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). As discussed above, the Board notes that the Veteran has indicated that his current obstructive sleep apnea is related to his service. He has also submitted statements from his wife and ex-wife which indicate a longstanding history of sleep apnea symptoms such as snoring and feeling tired. To the extent the Veteran and these individuals assert that his current sleep apnea is related to his service, they are competent to report that he has a current diagnosis (as that is documented in the record). They are also competent to report that he has had symptoms since service. However, the record does not document any findings of symptoms associated with sleep apnea in any of the available treatment records and his service examinations indicate normal findings. More specifically, when seen for evaluation he reported a post service onset rather than an inservice onset. Furthermore, his report for evaluation purposes is consistent with the normal service records. We find the lay evidence for treatment purposes to be far more reliable and credible than statements advanced in support of a claim for benefits. The Board therefore finds that the statements of the Veteran and individuals who submitted statements in support of his claim do not outweigh the opinion of the VA examiner who provided a thorough examination of the Veteran, considered his medical history and thereafter indicated that the Veteran’s current sleep apnea is due to his obesity. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. In short, the more credible and probative evidence establishes that the Veteran’s current sleep apnea was not manifest during service or any period of INACDUTRA. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for sleep apnea. The benefit sought on appeal is accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel