Citation Nr: 20005772 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 19-24 760 DATE: January 23, 2020 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran suffers from sleep apnea; the preponderance of the evidence is against a finding that the current condition was incurred in or is otherwise the result of his active service. CONCLUSION OF LAW The criteria for an award of service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1984 to January 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In adjudicating the appeal, the Board observes that nothing of record shows that Veteran has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The competent medical evidence includes current findings of sleep apnea. The Veteran maintains that he was first diagnosed with the condition while on active duty. The Board acknowledges that the Veteran was diagnosed with sleep apnea while on active duty. Specifically, service treatment records reflect that he had obstructive sleep symptoms and associated tonsillar hypertrophy. He underwent a sleep study in December 1986, which demonstrated obstructive sleep apnea. Thereafter, the record reflects that the Veteran underwent a tonsillectomy. A May 1987 follow-up record notes that he was healing well. It was indicated that he was to undergo a new sleep study in June 1987; however, nothing in the service treatment records reflects the results of any such study. Subsequently, there were no further notations with respect to sleep apnea on service department examinations conducted in August 1991 and October 1994. After service, the first medical evidence of sleep apnea appears to be in 2007, following another sleep study. The United States Court of Appeals for Veterans Claims (Court) has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service can be probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of a low back condition); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Given the gap in the record between the 1986 and 2007 diagnoses of sleep apnea, and the fact that VA does not recognize sleep apnea as a chronic disease, medical opinion evidence is necessary to determine whether the currently diagnosed sleep apnea is etiologically related to the problems noted in service. As noted above, the Veteran’s contentions with regard to nexus do not constitute competent medical evidence. In addition, there is no medical opinion of record which supports his claim. An opinion expressed by a VA examiner in April 2019 is against the claim. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. Most of the probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Board notes that a November 2018 VA examiner’s unfavorable opinion was based, in part, on an inaccurate or incomplete factual premise. Specifically, the examiner found no documented sleep study in the service treatment records (as the results of the December 1986 sleep study had not yet been added to the record at that time). For that reason, the November 2018 VA examiner’s opinion is entitled to no probative weight. However, the April 2019 VA examiner reviewed the results of the December 1986 sleep study. In addition, the examiner noted that the VA claims folder had been reviewed, and accurately summarized pertinent findings regarding the Veteran’s sleep apnea history. As such, the April 2019 VA examiner’s opinion was based upon an accurate understanding of the Veteran’s medical history. Further, the examiner’s opinion was not expressed in speculative or equivocal language, and was supported by stated rationale with reference to his history and medical principles pertaining to sleep apnea. In pertinent part, the examiner noted that after removal of the Veteran’s tonsils in service, there was no evidence of continued sleep apnea symptoms or continuous problems in or immediately out of service, and that the next complaint and work up were 20 years later, in 2007. The examiner noted that the Veteran’s weight had notably changed, from 156 to 240 pounds; and stated that the most common etiology of sleep apnea was weight gain. Therefore, with no evidence in the records of continued sleep apnea symptoms and a significant weight gain at time of recent documentation, the examiner opined the most likely etiology of the current sleep apnea was obesity. The Veteran has criticized the adequacy of the April 2019 VA examiner’s opinion, to include in a September 2019 written statement from his accredited representative. It has been contended, in part, that the determination that the in-service sleep apnea resolved with the tonsillectomy was purely speculative. The representative contended that the April 2019 VA examiner’s opinion that the sleep apnea was “most likely” due to obesity was not absolute, and thus was speculative. The representative stated that there were multiple reasons sleep apnea occurs, but to determine what causes when was abstract. The representative acknowledged that the 2007 sleep study report stated that the Veteran might benefit from weight loss, but that that was also not absolute. The representative contended in a prior August 2019 statement that the in-service tonsillectomy temporarily resolved the sleep apnea problem, but did not completely eliminate it. In this regard, the Board observes that the April 2019 VA examiner’s opinion appears to have been based upon an accurate understanding of the Veteran’s medical history. As stated above, there is no evidence of further treatment for sleep apnea in the service treatment records following the tonsillectomy until 2007. Moreover, there is evidence of weight gain in the interim. Because the examiner’s opinion is based on an apparent full and accurate understanding of the Veteran’s history, and is supported by rationale, it is probative. As noted, there is no contrary medical opinion of record. In light of the foregoing, the Board finds that the opinion of the April 2019 VA examiner is adequate, persuasive, and entitled to significant probative value in the instant case. The preponderance of the evidence is against a finding that the Veteran’s current sleep apnea was incurred in or is otherwise the result of his active service. As such, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Kitlas, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.