Citation Nr: 1807916 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-15 331A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for sleep apnea. ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1997. This matter comes to the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado. Jurisdiction is retained by the Regional Office in San Diego, California. This matter was previously remanded by the Board for further development in November 2015. It has returned for adjudication. The Board previously referred the Veteran's claim for depression as an unconsidered part of his PTSD claim. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, to include informing the Veteran that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (2017) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (2017) (continuing to provide for Board referral of unadjudicated claims). FINDING OF FACT The Veteran's obstructive sleep apnea was not incurred in or caused by service and was not caused or aggravated by a service connected disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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. §§ 1110, 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). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran was asked several times in service if he had trouble sleeping. Consistently throughout his 20-year career, the Veteran answered no. In April 2011, the Veteran claimed that he snored throughout service and was often tired. The Veteran had a sleep study performed in May 2011. It reported mild sleep apnea. In March 2012, two of the Veteran's coworkers wrote to state that the Veteran had trouble staying awake at work. In August 2012, the Veteran's son reported that his father showed symptoms of sleep apnea like his own. In September 2012, the Veteran's wife wrote to state that her husband snored and had trouble with sleep while he was in service. She also reported that she was a registered nurse and that sleep apnea was not widely known until the 1990s. In the Veteran's September 2012 notice of disagreement, he included several articles that discussed how sleep apnea could cause several other disorders. VA provided an examination in February 2013. The Veteran reported being diagnosed with sleep apnea in March 2006. The examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by military service. The examiner noted that the service treatment records did not note symptoms such as daytime tiredness. In addition, the time lapse between service and diagnosis was too long for "mild" sleep apnea to be imparted onto service. Another VA examiner also opined against service connection in May 2016. Although the examiner acknowledged that snoring can be a sign of sleep apnea, he indicated it is not the only symptom. The examiner noted that the service treatment records did not note trouble sleeping or daytime tiredness and that the Veteran gained 30 pounds in the time between discharge and diagnosis and the weight gain was likely the cause of the sleep apnea. In July 2016, VA obtained another opinion that stated that sleep apnea had been known to medicine since 1913, and the standard treatment today was made commercially available in 1985, more than a decade prior to the Veteran's discharge. The examiner acknowledged that the Veteran's wife, a registered nurse, was not familiar with sleep apnea at the time, but the Veteran saw an allergist and a pulmonologist, who would have both been familiar with the condition. In addition, the July 2016 opined that conditions other than sleep apnea may cause snoring, such as the Veteran's GERD, asthma, and allergies. Moreover, according to the examiner, the Veteran's child having sleep apnea does not necessarily mean anything as the condition of the child was not known. In addition, the examiner opined that the sleep apnea would not have been aggravated by the Veteran's service connected asthma. Per the examiner and cited medical literature, asthma was a disease of the lower respiratory system whereas sleep apnea was a disease of the upper respiratory system. The weight of the evidence is against a finding that the Veteran's sleep apnea was incurred in or caused by military service. The examiners explained the reasons for their conclusions based on an accurate characterization of the evidence and their negative nexus opinions are therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran has credibly reported that he snored during service. The examiners took into account the Veteran's lay statements in this regard, and noted that snoring can be caused by multiple diseases, that when Veteran was diagnosed with sleep apnea he had additional risk factors that he did not have in service, such as increased weight and age, and that when he was ultimately diagnosed, the sleep apnea was only "mild." To the extent that the Veteran and the other lay witnesses have indicated that the Veteran suffered from symptoms of sleep apnea such as excessive sleepiness while in service, the Board finds that his contemporaneous statements indicating throughout service that he did not have trouble sleeping to be of greater probative weight than the later statements made during the course of an appeal from the denial of compensation benefits. Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable). Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")); Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony). In addition, service connection is not warranted on a secondary basis. The evidence provided by the Veteran largely identified conditions that sleep apnea aggravated, not the other way around. Service connection on a secondary basis, whether based on causation or aggravation, requires that the service connected disorder be the one that causes or aggravates a non service connected disorder, and not the other way around. See Johnson v. Brown, 10 Vet. App. 80, 86 (1997) (because 38 C.F.R. § 3.310 and Allen v. Brown require that the service-connected condition be the causative factor, not the acted-upon factor, they are not applicable to a claim that a non service injury worsens a service connected disability). As noted, the July 2016 VA examiner specifically opined that this was not the case with regard to the Veteran's asthma, because the Veteran's asthma related to a different portion of the respiratory system and did not impact his sleep apnea, and this opinion was probative for the reasons stated above. Finally, to the extent that the Veteran and lay witnesses assert that his sleep apnea is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the lay testimony as to the etiology of the Veteran's sleep apnea is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for sleep apnea. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs