Citation Nr: 1808062 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-15 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT The Veteran's sleep apnea was not shown during active service and is not related to active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110,1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by a way of a letter sent October 2010. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, private treatment records, service treatment records, VA examination reports, hearing testimony, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Service Connection The Veteran is claiming entitlement to service connection for sleep apnea. The law provides that service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §3.303(a) (2017). In general service connection requires (1) evidence of in-service incurrence or aggravation of a disease of injury; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). After a review of the evidence of record, the Board finds that service connection is not warranted. The Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea while in service. The Veteran's October 1988 separation exam was silent for sleep apnea or respiratory complaints. Additionally, the Veteran's separation physical examination failed to document any complaints of, or observed symptoms related to sleep apnea or any respiratory issues. In fact, the post-service evidence does not reflect symptoms related to a sleep disorder for many years after the Veteran left active duty service. In November 2009, the Veteran was first diagnosed with sleep apnea. The Board emphasizes that because the Veteran left active service in 1988, it was not until approximately 21 years later that he was first diagnosed with a sleep disorder. Therefore, continuity is not established based on the clinical evidence. As part of this claim, the Board recognizes the statements regarding the Veteran's history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as sleep apnea, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. The Veteran testified that he experienced sleep apnea in service and lost roommates due to his snoring. In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of obstructive sleep apnea after separation from service as he was not diagnosed with sleep apnea until 21 years later. Moreover the Board notes that the Veteran was denied service connection for a back disorder and anal fissure in 2004, but he did not mention any sleep apnea symptoms at that time. The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation related to other disorders, but made no reference to the other scars he claims now weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Had the Veteran had sleep apnea at that time, as he now claims, there seems to be no reason why he would not have identified them at that time. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty or a service-connected disability, despite his contentions to the contrary. The Veteran underwent a sleep study at the VA Medical Center in November 2009 and was diagnosed with obstructive sleep apnea. In a 2013 opinion, the Veteran's private physician opined that it was more likely than not that the Veteran's sleep apnea was present in 1986. The Veteran's private physician opined in 2016 that it was quite plausible that increased steroid use could have caused weight gain and hence obstructive sleep apnea that was present, but not diagnosed, until a sleep study was performed in March 2008. The Veteran's psychiatrist provided an opinion in October 2017 concurring with the 2016 opinion that treatment with steroids caused the Veteran's weight gain and its residual effects that significantly contribute to his persistent sleep apnea. However, the private physicians did not provide an explanation or medical evidence on how the Veteran's use of steroids after his motor vehicle accidents caused weight gain which led to his sleep apnea. On the other hand, at a September 2014 VA examination, the examiner opined that it was less likely than not that the Veteran's sleep apnea was related to his service connected back condition. The examiner noted that the Veteran's service treatment records did not show visits to sick call for any symptoms related to sleep apnea or respiratory issues. The examiner stated that no actual event or experience occurred in-service could have caused sleep apnea. Additionally, the examiner opined that there is no proof that it was caused by the use of steroids as sleep apnea is more common in people that are overweight. The examiner noted that the Veteran's exit examination documented a weight gain of 25 pounds over an 18-month period, however the Veteran's discharge examination was absent for any respiratory issues or musculoskeletal conditions which he could attribute weight gain due to an injury. The Board is persuaded by the VA examiner's logic that the Veteran's sleep apnea was not result of an injury or condition that occurred while in-service. The VA examiner's opinion was based on a full review of the claims file and examination of the Veteran, while it is unclear which records were reviewed by the Veteran's treating physicians. Furthermore, the Veteran did not seek treatment and was not diagnosed with sleep apnea until 2009, which was 21 years after discharge. The Board has also considered the statements made by the Veteran and his spouse relating his sleep apnea to his active service. The Veteran contends that his use of prescribed steroids after his motor vehicle accidents in 1986 and 1989 were the cause of his weight gain that led to sleep apnea. The Federal Circuit has held that "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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3.d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his sleep apnea. See Jandreau, 492 V.3d at 1377, n.4. Because sleep apnea is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's statements regarding the etiology of his sleep apnea are found to lack competency. Therefore, after a careful review of the entire record, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2017). Therefore, the appeal is denied. ORDER Service connection for sleep apnea is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs