Citation Nr: 18159088 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 18-20 814 DATE: December 18, 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 Reserve duty or active duty for training (ACDUTRA). CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service or ACDUTRA. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of ACDUTRA from February 1979 to April 1979 and a period of active service from May 2006 to July 2007. He had additional Reserve duty in the Army National Guard of Puerto Rico and ACDUTRA in June 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service connection for sleep apnea The Veteran contends that he has sleep apnea that is related to his service. He specifically contends that the sleep apnea is related to exposure to environmental hazards in Southwest Asia during his period of active service and that the sleep apnea was aggravated during his period of ACDUTRA in June 2014. See, e.g., the Veteran’s notice of disagreement dated February 2015. He does not contend that the sleep apnea is related to any other period of service. Pertinent legal criteria 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. Service prior to June 2014 ACDUTRA The Veteran’s available service treatment records are absent complaints of or treatment related to sleep apnea during active service. However, as discussed above, the Veteran contends that during service in Southwest Asia, he was exposed to environmental hazards. In this regard, the Board notes that the Veteran is competent to attest to such exposure. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notably, the Veteran’s service personnel records document his service in Kuwait from July 2006 to June 2007 as a logistics technician and his post-deployment examination documented exposure to paint, smoke from oil fire, tent heater smoke, and sand/dust. The Board notes that an August 2012 VA treatment record documents a consult with pulmonary service for an evaluation to rule out sleep apnea. Also, a January 2013 VA treatment record noted the Veteran showed “significant signs and symptoms” suggestive of sleep apnea, and sleep apnea was confirmed in a January 2015 VA opinion report. 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, a VA opinion was obtained as to the etiology of the Veteran’s sleep apnea in January 2015. The VA examiner noted the Veteran’s report of exposure to environmental hazards during his service in Southwest Asia. After consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran’s sleep apnea is related to the exposure to environmental hazards. The examiner’s rationale for his conclusion was based on his review of medical literature which did not support a relationship between obstructive sleep apnea and exposure to environmental hazards that the Veteran experienced during his service in Southwest Asia. The January 2015 VA opinion report 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 exposure to environmental hazards during service and further indicated that such exposure was not related to the Veteran’s sleep apnea. 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 active service. To the extent the Veteran asserts that his current sleep apnea is related to his service, he is competent to report that he has a current diagnosis (as that is documented in the record). He is 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 during active service and his post-deployment examination indicates normal findings. Moreover, he denied symptoms consistent with sleep apnea on the post-deployment examination. The Board therefore finds that the inconsistent statements of the Veteran do not outweigh the opinion of the VA examiner who considered his medical history and thereafter indicated that the Veteran’s current sleep apnea is not due to exposure to environmental hazards during service in Southwest Asia. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. Period of ACDUTRA in June 2014 With regard to the Veteran’s contention that his current sleep apnea is due to the period of ACDUTRA in June 2014, the Board notes that a service record shows the Veteran had a period of ACDUTRA that was to begin no later than June 2, 2014 and last two weeks. In support of his claim, the Veteran submitted a sleep study dated June 4, 2014 from Laboratorio de Estudios de Sueno that documented moderate obstructive sleep apnea, severe snoring, and Class I Obesity (American Heart Association Classification). Certain evidentiary presumptions apply to periods of active duty. In particular, there is a presumption of sound condition upon entrance into service unless a defect is noted on the entrance examination; and a presumption of aggravation of a preexisting condition if a preexisting condition undergoes an increase in severity during service. 38 U.S.C. §§ 1111, 1153 (2012); 38 C.F.R. §§ 3.304(b), 3.306 (2017). However, these presumptions will not apply to certain periods of ACDUTRA. In Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010), the Court of Appeals for Veterans Claims (Court) held that for veterans who have achieved “veteran” status through a prior period of service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” For example, a claimant who has “veteran” status through a prior period of active duty and wishes to apply for a disability that was incurred during a period of ACDUTRA must have had an examination prior to entering the period of ACDUTRA during which the injury or disease occurred for the presumption of soundness to apply. 38 U.S.C. § 1111 (2012). As discussed above, the Veteran was treated for sleep apnea prior to his period of ACDUTRA in June 2014. Moreover, there is no evidence that the Veteran had an entrance examination at the initiation of his June 2014 period of ACDUTRA, nor does he claim such. The presumption of soundness does not apply. Further, as explained in Smith, “the presumption of aggravation is not applied to persons whose claims are based on a period of active duty for training.” 24 Vet. App. at 48. As none of the presumptions apply, the issue becomes whether the pre-existing sleep apnea underwent an increase in severity during the June 2014 period of ACDUTRA. The Veteran has the burden to establish both that the preexisting disability worsened in service and that such worsening was beyond the natural progression of the disease. Donnellan, 24 Vet. App. at 175. After a consideration of the evidence of record, the Board finds that the Veteran’s preexisting sleep apnea did not undergo an increase in disability during the period of ACDUTRA in June 2014. Although the Board notes the lay statements of record, the June 2014 sleep study only documents “moderate” sleep apnea. Notably, the Veteran had previously been treated for “significant” signs and symptoms of sleep apnea in January 2013. See VA treatment record dated January 2013. Moreover, there is no service examination dated during the Veteran’s June 2014 ACDUTRA that indicates a worsening of the sleep apnea, and indeed, the Veteran has not contended that such examination exists. He has also not stated how the sleep apnea worsened during the ACDUTRA and the objective evidence of record is absent such a finding. Thus, the Board finds that there was no increase in severity during such period. Moreover, even if the Board were to concede that the June 4, 2014 sleep study was a temporary flare-up of the sleep apnea during the period of ACDUTRA, such temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). Here, it is established that the preexisting sleep apnea did not worsen as opposed to the Veteran exhibiting symptoms of such disability. The Board acknowledges the statements of the Veteran in support of his claim and the general assertions as to his underlying sleep apnea having worsened because of his June 2014 ACDUTRA. While laypersons are competent to report a contemporaneous medical diagnosis and in certain instances opine as to etiology, the general statements of the Veteran that he had sleep apnea increase in severity in service (as opposed to intermittent flare-ups of symptomatology) does not outweigh the above evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). For the reasons explained above, the Board finds that the Veteran’s pre-existing sleep apnea did not undergo an increase in the severity during his June 2014 ACDUTRA. Conclusion In summary, the more credible and probative evidence establishes that the Veteran’s current sleep apnea was not incurred in or aggravated during service or any period of ACDUTRA. Accordingly, 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