Citation Nr: 1808934 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-06 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1966. This case comes before the Board of Veterans' Appeals (BVA or Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2016, the Board remanded the issues of entitlement to service connection for bilateral hearing loss and sleep apnea for further development. The remand required the RO to take appropriate steps to request his 1965 separation examination and to afford the Veteran new VA examinations. In compliance with the remand directives, new VA examinations and the Veteran's STRs were obtained. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). An October 2016 rating decision granted service connection for bilateral hearing loss and the issue is no longer on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Sleep apnea was not manifest in service or attributable to any aspect of service. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran has not 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 duty to assist argument). II. Service Connection To establish service connection a Veteran must generally 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, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). III. History In the Veteran's January 1962 enlistment Report of Medical History, he denied frequent trouble sleeping. He wrote "I am in good health." His January 1962 enlistment examination was clinically normal for nose, sinuses, mouth, and throat. In the Veteran's December 1965 Report of Medical History, he denied frequent trouble sleeping. In his December 1965 separation examination, the Veteran was clinically normal for the nose, sinuses, mouth, and throat. VA treatment records located in the Virtual VA electronic file from August 2005 shows reports by the Veteran of shortness of breath and fatigue on extended walking. The Veteran reported symptoms of sleep apnea in that he was waking up at night because he was not breathing. The attending physician noted, " symptoms could be pulmonary in origin in view of heavy on going smoking; he also has sx suggestive of OSA." VA treatment records show that the Veteran was afforded a sleep study in November 2005. A VA treatment record from December 2005 shows that sleep apnea was identified, and the Veteran was scheduled to be fitted with a continuous positive airway pressure (CPAP) device. By April 2006, VA treatment records show that sleep apnea had once again been identified. Additional VA treatment records are substantially the same. In the Veteran's August 2012 Notice of Disagreement (NOD), the Veteran reported that between 1965 and 1966, he was stationed at the Castle Air Force Base in California. He went to the doctor on base complaining of fatigue and daytime sleepiness. He asserts that sleep apnea was not discovered until the 1970s, so it is unlikely that the military doctor was able to adequately determine his diagnosis. No lab work was conducted at the time. The Veteran was given a prescription for diet pills to keep him awake. The Veteran contends that due to a lack of treatment and reckless prescription of diet pills, he went for years with undiagnosed sleep apnea. He concluded, "Since the disease was not discovered until the 1970s there would be no record formally addressing sleep apnea. However my complaints of sleepiness and fatigue should be documented and they are symptoms of sleep apnea." The Veteran was afforded a September 2016 VA examination. The VA examiner reviewed the entire claims file, and opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the Veteran's service treatment records do not show a diagnosis of sleep apnea, sleepiness, fatigue or treatment with diet pills during military service. The VA examiner identified persistent daytime hypersomnolence. The VA examiner found that the Veteran had a documented sleep disorder related to a sleep study from November 2005. The results showed mild obstructive sleep apnea. The VA examiner opined that symptoms occurring in 1965, forty years prior, could have been due to a variety of problems including the Veteran's reported interruption of sleep by aircraft noise. IV. Analysis Sleep apnea is defined as transient periods of cessation of breathing during sleep. The two primary types are central sleep apnea and obstructive sleep apnea. See Dorland's Illustrated Medical Dictionary, 118 (31st ed. 2007). Obstructive sleep apnea is defined as sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep. Id. The Veteran is competent to relate what he has been told by a professional. He is also competent to report that he had difficulty sleeping in service. The Veteran is also competent to report his symptoms and observations of sleep apnea. Here, the STRs show that the Veteran's sleep apnea was not manifest in service. Although the Veteran later complained of difficulty sleeping in service, sleep apnea was not noted or manifest during service. The most probative evidence is the STRs, VA treatment records, and September 2016 VA examination with medical opinion establishing a remote onset of sleep apnea several decades after discharge. VA treatment records show that sleep apnea was not identified until November 2005. The VA examiner reviewed the entire claims file, and opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner opined that symptoms occurring in 1965, forty years prior, could have been due to a variety of problems including the Veteran's reported interruption of sleep by aircraft noise. The Board finds this to be highly probative. The Veteran's own opinion warrants less probative value (regarding identifying a potential disease entity) when compared with the objective contemporary medical evidence of record. The Board has also considered his statements regarding his symptoms during service and after discharge. However, the record establishes that he did not have the characteristic manifestations necessary to identify the disease entity in service, and the remote onset of sleep apnea is unrelated to in-service events. Although daytime sleepiness alone may be an indicator, it is not consistent with the definition. The contemporaneous service records were normal and silent for any difficulty with nighttime breathing cessation. The medical evidence as to etiology is far more probative and credible than his lay statements. In sum, the most probative evidence shows that the Veteran's sleep apnea is not related to service. Consequently, service connection for sleep apnea is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs