Citation Nr: 20009897 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 14-19 966 DATE: February 6, 2020 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The probative evidence of record is against a finding that sleep apnea, diagnosed 13 years after separation from service, had its onset during service or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to January 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran and his wife testified before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. In April 2018, the Board remanded the claim. It is now returned for further appellate action. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Post-service treatment records demonstrate that the Veteran was diagnosed with sleep apnea following a sleep study performed in July 2012. The requirement for a current disability has been met. Accordingly, the question remains whether the condition is related to service or had onset therein. Service treatment records (STRs) indicate that the Veteran sustained a nasal septum fracture in April 1997. In June 1997, he underwent a tonsillectomy with uvuloplasty on account of reported heroic snoring. It was specifically indicated that there had been no witnessed apneic events, but the snoring kept the Veteran’s wife awake. In November 1998, two months prior to separation from service, the Veteran underwent a pre-discharge examination. It was stated that since surgery, the Veteran had not had continuing problems with snoring. It was again indicated that the Veteran had never had any sleep apnea symptoms and did not have such symptoms at the time of the examination. In August 2012, the Veteran filed a claim for service connection for sleep apnea secondary to his nasal septum condition. In November 2012, the Veteran underwent a VA examination. It was noted that he complained of snoring in service and underwent surgery. His snoring improved, but eventually became worse 3 or 4 years previously. Around that same time, the Veteran’s wife noted his breathing would stop and he finally underwent a sleep study that revealed sleep apnea. As to whether the Veteran’s sleep apnea was caused by or aggravated by his service-connected nasal septum fracture, the examiner opined this was less likely than not. It was explained that the Veteran did not have any residuals from the nasal septum fracture, it did not cause any daytime or nighttime problems and a nexus between it and sleep apnea could not be made. Following denial of service connection in December 2012, the Veteran submitted a Central Nervous System Disability Benefits Questionnaire in March 2013 completed by a private doctor. Dr. M. stated that although a sleep study was not performed until after retirement, in light of the Veteran’s heroic snoring in service and surgical intervention, that it was more likely than not that he had the condition of sleep apnea since at least 1997. Notably, Dr. M. did not provide a rationale as to why sleep apnea was likely present due to heroic snoring in the absence of apneic events. As such, the opinion is of limited probative value. In an April 2014 statement, the Veteran clarified that he was no longer claiming that his sleep apnea is secondary to his in-service nasal fracture and instead, based on Dr. M.’s opinion, believed that sleep apnea had onset during service. At his January 2018 Board hearing, the Veteran testified that he began snoring in the early 1990s. He indicated that after his nasal septum injury, he asked whether it would make his snoring worse and was reportedly told “no.” He discussed his snoring problem with the doctor, and it was recommended his uvula be removed. He indicated believing his condition was life threatening in service and that although the surgery initially improved the snoring, it became worse again when he healed, and he would snore himself awake and gasp for air. Following the hearing, the Veteran submitted another private opinion. Doctor A. stated that the Veteran had experienced symptoms of sleep apnea since 1997. The doctor indicated that since then the Veteran had loud snoring, apneas that caused his wife to wake him from sleep and gasping at the end of apneas along with significant daytime fatigue. Based on this understanding, the doctor indicated that he would have diagnosed the Veteran with sleep apnea and referred him for a sleep study in 1997. This opinion lacks probative value as it is based on an understanding that the Veteran experienced apneic events along with snoring during service. Such finding is directly contradicted by the STRs and the indication at the November 2012 examination that apneic episodes began 3 to 4 years prior to that examination. In August 2019, a VA examiner reviewed the claims file. He noted that the Veteran did have snoring during service which was not felt to be due to sleep apnea. The records by his ENT doctor addressed the issue of sleep apnea with no apneic episodes ever being witnessed. In addition, the examiner noted the November 1998 examination in which it was noted the Veteran “never had any sleep apnea symptoms, and does not have any now.” He noted that the uvuloplasty and tonsillectomy performed in 1997 resolved the snoring issue at that time, and there was no evidence of sleep apnea during active duty and nothing in his records suggesting anything in service caused his sleep apnea or was related to his subsequently diagnosed sleep apnea in any manner. He concluded that a nexus could not be made. Upon review of the evidence, the Board concludes that the criteria necessary to grant service connection are not met. The evidence is against a finding that the Veteran had sleep apnea in service as that is directly contradicted by the medical records at the time. The most probative evidence supports a finding that sleep apnea symptoms leading to the present diagnosis of sleep apnea began years after service. For example, witnessed apneic episodes reportedly began around 2008 or 2009 per the Veteran’s indication at the November 2012 VA examination. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the appellant’s history. Prejean v. West, 13 Vet. App. 444 (2000). In addition, an opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229 (1993)) (holding that the Board is not bound to accept medical opinions that are based upon an inaccurate factual premise); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Here, the private opinions assume that the appellant had apneic episodes in service. As explained, this is directly contradicted by evidence in the claims file and as such, the opinions can be afforded little, if any, probative value when considering the merits of the claim. The Board attributes greater probative value to the August 2019 VA opinion. That examiner considered the Veteran’s relevant history, including his lay statements regarding symptomatology, and provided a well-reasoned rationale for the adverse conclusions reached. It is clear that the Veteran snored during service; however, as noted by the November 2012 and August 2019 VA examiners, clear evidence of sleep apnea such as cessation of breathing while asleep were not noted until a significant time after separation from service. The Board acknowledges the Veteran’s belief that what he was experiencing in service was actually sleep apnea. Although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide a diagnosis of more complex medical conditions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this regard, the Board concludes that sleep apnea is not the kind of condition that is capable of lay diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In addition, although a layperson can provide evidence as to some questions of etiology, a question about the etiology of sleep apnea or a relationship between such condition and service, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Jandreau, 492 F.3d at 1376-77; Barr, 21 Vet. App. at 309; Woehlaert, 21 Vet. App. at 462. Rather, such a question is a medical matter requiring someone with medical training to resolve. The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on the matter. (Continued on the next page.) Given the above, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea, to include on a direct or a secondary basis. As such, the doctrine of reasonable doubt is not for application, and the claim must be denied. See 38 C.F.R. § 3.102. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Boyd Iwanowski, 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.