Citation Nr: 1808636 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-02 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for sleep apnea. ATTORNEY FOR THE BOARD R. M. Harris, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACTDUTRA) from May 2004 to November 2004. The Veteran served on active duty from May 2007 to June 2008. He has service in the Marine Corps Reserves both prior to and after his period of active duty service. This matter is before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. As is noted in a prior Board remand dated July 2015, the Veteran was scheduled for a videoconference hearing before the Board. Notice of this hearing was sent to the Veteran in May 2015 and was not returned as undeliverable; however, he failed to report for the hearing and has not requested that the hearing be rescheduled. In July 2015 and in August 2017, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. The Board finds that there has been substantial compliance with its remand instructions and, therefore, the Board may proceed with final adjudication. See Stegall v. West, 11 Vet. App 268 (1998). FINDINGS OF FACT Obstructive sleep apnea did not manifest in service and is unrelated to service. CONCLUSION OF LAW Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. See 38 U.S.C. §§ 5102, 5103(a), 5103A, 5106 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017); See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria and Analysis The Veteran specifically claims that he began having trouble sleeping upon his return from Iraq in April 2008, and attributes the onset of his currently diagnosed sleep apnea to that time. Veterans are entitled to compensation 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 entitlement to service-connected compensation benefits, 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 may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or-symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.FR 3.303 (a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The record reflects that the Veteran was diagnosed with obstructive sleep apnea in February 2010 based on the results of a VA sleep study. Following that diagnosis, the Veteran was prescribed a continuous positive airway pressure (CPAP) machine, which he continues to use to this day. Service treatment records do not show any complaints, treatment, or diagnosis of sleep apnea during active duty service. VA treatment records show the Veteran underwent a tonsillectomy in November 2008. He reported loud snoring but that he did not wake up or stop breathing at night. On a follow up note in December 2008, the Veteran reported no complaints after tonsillectomy. In June 2009, he was seen for symptoms related to a service connected knee disability and reported no difficulty with sleeping. In October 2009, he was seen for symptoms of sleep apnea and reported that his wife witnessed that he snores and stops breathing. Thereafter, the Veteran underwent the sleep study and February 2010 and was diagnosed with sleep apnea. The Board notes that the record contains two VA medical etiology opinions. In the August 2017 remand, the Board found that an addendum opinion was needed for clarification. It was noted the November 2015 VA examiner provided a negative nexus medical opinion, and by way of rationale, indicated that the Veteran's service treatment records from May 2007 to June 2008 included no complaints or diagnoses of sleep apnea, and that the Veteran was not diagnosed with sleep apnea until February 2010. Moreover, the examiner generally stated that the preponderance of the medical evidence and expertise reveals the proximate cause of obstructive sleep apnea to be a developmentally narrow oropharyngeal airway, often with superimposed elevation of BMI and/or natural aging. The examiner noted that May 2006 service treatment records show the Veteran had a BMI of 34.45, and in February 2010, the year of his diagnosis for sleep apnea, the Veteran had a BMI of 39.88. However, the Board found that the examiner did not indicate whether the Veteran's obstructive sleep apnea was caused by the noted developmentally narrow oropharyngeal airway, elevated BMI and/or age. An addendum opinion was requested. An addendum opinion was obtained in August 2017 which is included in a September 2017 VA examination report. The VA examiner opined that it is less likely as not that the Veteran's obstructive sleep apnea had its onset in service or is otherwise related to his period of active service from May 2007 to June 2008 to include his service in Iraq. The examiner noted that the Veteran's service treatment records were silent for snoring or apneic episodes, and that the April 2008 separation examination showed no report of sleep difficulty. He noted that the Veteran underwent an evaluation in November 2008 for snoring, however the Veteran denied waking from sleep or stopping breathing at night at that time. The examiner attributed the snoring in 2008 to the Veteran's diagnosis with tonsillar hypertrophy and that the snoring was temporarily resolved after the tonsillectomy.. He explained that snoring alone does not equate to obstructive sleep apnea and that obesity is a risk factor noting a BMI of 30 or above equals to obesity. Further, the examiner clarified that the reference to developmentally narrow oropharyngeal airway and BMI was the etiology of sleep apnea. Upon consideration of the above, the Board finds that the preponderance of the evidence is against service connection for sleep apnea. Indeed, the only medical opinions of record are the November 2015 VA medical opinion and the August 2017 addendum opinion which both concluded that the diagnosed sleep apnea was not related to service. The Board finds the opinions to be adequate and competent evidence against the claim. While the November 2015 opinion required an addendum for clarification, when considering both opinions together, the conclusion is the same, that the diagnosed sleep apnea is not related to service. The opinions are based on an accurate factual premise and provide a full rationale. Moreover, they stand uncontradicted by any other competent evidence of record. The Board acknowledges that in his November 2015 examination, the Veteran reported a family history of obstructive sleep apnea, and a personal history of daytime fatigue and non-restorative sleep even after sleeping over 9 hours dating back to late 2008, early 2009, and that his wife witnessed his snoring and apneic episodes in 2009. See also Statement in Support of the Claim dated November 2011. The Veteran is competent to report how he feels, as a lay person, however, he is not competent to state disease etiology or whether disease etiology is related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide a diagnosis of sleep apnea as he has not been shown to have the requisite expertise to do so. Moreover, even assuming that symptoms developed in 2009, this is beyond the Veteran's active duty period. In sum, the evidence of record does not support that there is a link between his diagnosed obstructive sleep apnea and service. The contemporaneous records establish that relevant systems were normal at separation and the Veteran specifically denied any sleep issues. VA examinations point to other factors that may lead to sleep apnea. The probative evidence indicates that the Veteran did not have obstructive sleep apnea during service and that his current disorder is not related to any event in service. The evidence establishes an onset of obstructive sleep apnea postservice and unrelated to service. For the reasons provided above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's currently diagnosed obstructive sleep apnea is related to service and the claim must be denied. ORDER Entitlement to service connection for obstructive sleep apnea is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs