Citation Nr: 19123710 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-43 829 DATE: March 29, 2019 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s obstructive sleep apnea is related to an event, injury, or disease in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1992 until June 1997, March 2002 until August 2002, from August 2004 until January 2006 and August 2008 until October 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that VA treatment records were associated with the claims folder after the issuance of the January 2018 Supplemental Statement of the Case. Appellants are entitled to initial review by the Agency of Original Jurisdiction of evidence added to the file by VA, and waiver of such review may not be presumed. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1304. However, evidence that is not pertinent (that is, it does not relate to or have bearing on the appellate issue or issues) does not need to be waived by the Veteran. 38 C.F.R. § 20.1304(c). In this case, the VA treatment records duplicate the fact that the Veteran is currently diagnosed with sleep apnea and other disorders, which is not at issue. Therefore, the Board finds that the addition of the new evidence is not pertinent and that the Board may proceed without further delay. Service Connection for Sleep Apnea Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran asserts that his sleep apnea is directly related to service. See July 2017 Notice of Disagreement. Specifically, he believes that his sleep apnea is related to his weight gain during his second deployment to Iraq, which was from August 2008 until July 2009. VA medical treatment records reflect that the Veteran is currently diagnosed with obstructive sleep apnea. See December 2015 private treatment record and May 2016 VA examination. Therefore, the record shows that there is an existence of a present disability. Regarding whether there was an in-service occurrence, the Veteran’s relevant in-service treatment records dated July 2009, August 2009 and February 2010 (post-deployment health assessments) show complaints of feeling tired after sleeping, several reports of sleeping problems and need of alcohol consumption to sleep since first deployment. Since there is some evidence of complaints and reports of sleeping problems, the issue then is whether there is a causal relationship between the Veteran’s obstructive sleep apnea and the Veteran’s in-service complaints and reports regarding his sleeping issues. To support his contention, the Veteran submitted treatment records from a private physician and several lay statements. The December 2015 private treatment records show diagnostic testing and diagnosis of obstructive sleep apnea. A nexus opinion was not provided. The March 2016 lay statement by his roommate during second deployment to Iraq indicate that his roommate witnessed the Veteran’s loud snoring and how the Veteran stopped breathing then would snore again through the night. Similarly, the Veteran’s wife testified that she witnessed the Veteran snoring loudly and how he would stop breathing during his sleep. Furthermore, the Veteran reported that he continuously experienced such symptoms after separation from service. See March 2016 Statements in Support of Claim. Thereafter, the Veteran was afforded a VA examination in May 2016. Diagnosis of sleep apnea was confirmed; however, the VA examiner concluded that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that he carefully reviewed the lay statements and the in-service treatment records. However, based on the medical and lay evidence, the examiner opined that there was no causal relationship because there was no objective evidence and documentation that the Veteran had symptoms of obstructive sleep apnea, specifically loud snoring reported or pauses in breathing while in service. The VA examiner also noted that the Veteran’s weight gain over 20 pounds from 2011 to 2016 would be a significant risk factor for obstructive sleep apnea. Because there was lay evidence that the Veteran had symptoms of loud snoring and stoppage in breathing, VA sought another medical opinion regarding the causal relationship between the Veteran’s sleep apnea and whether the disease was incurred during military service. In an October 2017 VA medical report, the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that medical studies in literature specifically found that snoring is not a specific indicator for sleep apnea and is not useful for establishing the diagnosis. Furthermore, after reviewing the records, the VA examiner concluded that the Veteran’s sleep symptoms are more consistent with insomnia, and not sleep apnea. The examiner clarified that obstructive sleep apnea is characterized by recurrent collapse of the pharyngeal airway during sleep, resulting in substantially reduced or complete cessation of airflow despite ongoing breathing efforts, which leads to intermittent disturbances in gas exchange (e.g., hypercapnia and hypoxemia). The VA examiner noted that medical experts attribute obese body habitus as the single strongest risk factor for sleep apnea, since an obese body results in an anatomical crowding of one’s airway due to excess soft tissue from a large neck circumference. The study also noted that the prevalence of obstructive sleep apnea progressively increases as the body mass index (BMI) and associated markers (e.g., neck circumference, waist-to-hip ratio) increase. The examiner pointed out that consistent with this etiology is that fact that the Veteran is medically morbidly obese. Moreover, the Veteran has a well-documented history of weight issues. The Board finds the VA opinion from October 2017 to be highly probative. The probative value of medical opinion is based on his or her knowledge and skill in analyzing the data and the medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the October 2017 VA opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. The VA opinion is also shown to have been based on a thorough review of the Veteran’s record, including lay statements submitted by the Veteran, and is accompanied by sufficient explanations and citations to current medical literature. Additionally, the VA examiner adequately addressed why the Veteran’s sleep apnea was less likely than not related to his military service, in that the Veteran’s sleeping habits and patterns are not a good indicator for sleep apnea, but that the Veteran’s morbid obesity is a better indicator for the cause of sleep apnea. As the examiner relied on the record, including the Veteran’s statements and submissions, relied on current medical literature and provided an adequate rationale for his opinion, the Board finds that this opinion is highly probative. Furthermore, there is no medical opinion to the contrary. The Board, however, finds the May 2016 opinion to be less probative since the examiner did not take into account of the lay statements submitted by the Veteran and was not accompanied by sufficient explanations. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay person is competent to identify the presence of disability or symptoms of disability subject to lay observation); see Bloom v. West, 12 Veteran. App. 185, 187 (1999) (the value of the physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Moreover, although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matters of the diagnosis and etiology of sleep apnea are complex medical matters that fall outside the realm of common knowledge of a lay person. See Clayburn v. West, 12 Vet. App. 488, 496-97 (1997) (holding that a veteran is not competent to relate currently diagnosed joint disease to the continuous post-service back injury). Specifically, the question of causation of obstructive sleep apnea involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of how the human body develops obstructive sleep apnea and the impact past medical symptoms could have on such disease, if any. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of obstructive sleep apnea. Therefore, the Board finds that the Veteran’s assertion that his in-service sleeping habits and patterns and his obstructive sleep apnea are related has no probative value. While the Veteran’s in-service sleeping habits and patterns are less likely than not the cause of the Veteran’s obstructive sleep apnea, both VA medical examiners opined that the Veteran’s obese body habitus was a significant factor to his obstructive sleep apnea. Furthermore, in his Notice of Disagreement, the Veteran asserted that his weight gain during service is related to his sleep apnea. Obesity, however, does not qualify as an in-service event according to VA law. 38 C.F.R. § 3.159(a)(4). Obesity is not itself a discrete incident or occurrence associated with the places, types and circumstances of service. 38 U.S.C. § 1154(a); 66 Fed. Reg. at 45,622. Rather, obesity occurs over time and is based on various external and internal factors and processes, many of which cannot be considered discrete events. See Scientific Making, Policy Decisions, and the Obesity Pandemic, 88 Mayo Clinic Proceedings 593 (2013); see generally VAOPGCPREC 1-2017. Therefore, by VA law, an assertion that a post-service disease occurred because of in-service weight gain, which over time could lead to obesity, cannot be considered for a claim involving service connection. Based on the foregoing, the Board finds that service connection for obstructive sleep apnea is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the finding that there is a causal relationship between the Veteran’s obstructive sleep apnea and to an event, injury or disease that occurred in military service. As such, service connection for obstructive sleep apnea is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lee, Associate Counsel