Citation Nr: A20008897 Decision Date: 05/19/20 Archive Date: 05/19/20 DOCKET NO. 190718-15923 DATE: May 19, 2020 ORDER Readjudication of the claim for service connection for sleep apnea is warranted. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. New evidence was received after the July 2018 Board denial that is relevant to the issue of entitlement to service connection for OSA. 2. The Veteran’s obstructive sleep apnea did not begin during active service and is not otherwise related to an inservice injury or disease, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for OSA have been met. 38 C.F.R. § 3.156 (d). 2. The criteria for establishing service connection for OSA have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to October 1985. In December 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2 (d). This matter comes to the Board on appeal of a December 2018 rating decision. The Board received his VA Form 10182 Notice of Disagreement on April 2019; the Veteran selected the Evidence Submission Reviewed by a Veterans Law Judge option which allows 90 days for submission of additional evidence in support of the appeal. New and Relevant Evidence VA will readjudicate a claim if new and relevant evidenced is presented or secured. at 38 C.F.R. § 3.156 (d). “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501 (a)(1). 1. New and relevant evidence regarding the claim of entitlement to service connection for sleep apnea The questions in this case are whether the Veteran submitted evidence after the prior final denial of his claim for service connection for sleep apnea in the legacy system, and if so, whether that evidence is new and relevant to his claim. The Board finds the Veteran submitted new evidence after the prior final July 2018 Board decision in the legacy system that is relevant to his claim. The Veteran submitted new private opinions linking his sleep apnea to his service authored by a private physician, and also was afforded a new VA examination in March 2019. This evidence was not already of record and may prove or disprove an element of the claim for service connection for sleep apnea. Readjudication of this claim is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Entitlement to service connection for obstructive sleep apnea The Veteran generally contends that he developed OSA as a result of service. The record reflects that the Veteran was diagnosed with obstructive sleep apnea following a sleep study in in November 2014 by VA. Thus, the current disability requirement is satisfied. In a March 1986 treatment record, it was noted that the Veteran had sinus trouble. Outside of this isolated notation, the Veteran’s service treatment records (STRs) are silent for any problems related to sleep apnea. The Veteran submitted numerous lay statements, including statements from fellow servicemembers describing his snoring problem and sleep issues while in service. Additionally, the Veteran’s ex-wife submitted a statement describing him as a horrific snorer, and a friend from high school also submitted a statement regarding the Veteran’s snoring post-service. The Veteran reported in a February 2015 VA treatment record that he believed he suffered from sleep apnea since 1982, and that he was a horrific snorer since then, gasping for air. Further, the Veteran detailed his reported symptoms at his January 2018 Board hearing, specifically that during service, he would snore loudly and sometimes stop breathing. He stated that he was fit at the time and athletic. The feeling of not breathing and choking has gone on his entire life. He said that he was not diagnosed following service and instead was treated for high blood pressure. He said during service he would fall asleep standing up. The Board has considered these statements, and although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, an opinion as to the cause of his sleep apnea falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran attended a VA examination in January 2015. 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 examiner reasoned that the Veteran was diagnosed with obstructive sleep apnea in November 2014 by VA. He used a CPAP machine. The Veteran stated that his sleep apnea began in boot camp in 1982 because he was a loud snorer. The examiner stated that there was no documentation of any such issues in his military records. He was not diagnosed or treated for sleep apnea until 2014, 32 years after boot camp, and thus this condition was not service connected. In a March 2016 private treatment record, the Veteran’s private physician opined that the Veteran’s sleep apnea developed during the Veteran’s service. The private physician based this on the testimonies of the Veteran’s fellow servicemen, friend and his ex-wife, as well as on recent medical literature. The private physician stated that since only a sleep apnea study could diagnose obstructive sleep apnea, and physical exam and laboratory exams were generally normal, the Veteran unfortunately went undiagnosed until having a study performed in 2014, finding sleep apnea requiring treatment by CPAP. In addition, the private physician noted that the Veteran’s service treatment records showed elevated blood pressure readings. The finding of hypertension in a young soldier was unusual; thus, the elevated blood pressure readings during the Veteran’s service suggested that the Veteran was suffering from sleep apnea while in service. The examiner concluded that based on a review of the Veteran’s medical and military records, it was more likely than not that the Veteran’s sleep apnea developed during his service. In an April 2016 VA opinion, the examiner noted that obesity was the greatest risk factor for obstructive sleep apnea and the Veteran was noted to have had a significant weight gain since leaving the service. He was noted to have weighed 155 pounds in January 1985 and around the time he was diagnosed with obstructive sleep apnea he was noted to weigh 222.6 pounds in November 2014. The examiner opined that it was less likely than not that the Veteran had obstructive sleep apnea in service or the beginning of symptoms of obstructive sleep apnea in service. The examiner stated that the medical opinion provided by the March 2016 private physician would be mere speculation in determining that the obstructive sleep apnea developed in service or that the Veteran’s hypertension was due to obstructive sleep apnea. A history of snoring would not be diagnostic of obstructive sleep apnea especially without a documented history of apneic episodes. The Veteran provided private medical opinions from Dr. Bash dated in August 2018, December 2018, and January 2019. These medical opinions relate the Veteran’s current diagnosis of OSA to his military service. He bases his opinion on the lay statements provided regarding the Veteran’s in-service snoring and sleep issues, a discharge examination noting high blood pressure, and reasons that the Veteran has had symptoms of OSA for many years but was not diagnosed until 2014. In a March 2019 VA opinion, the examiner opined that it would be less likely than not that the Veteran’s current diagnosis of sleep apnea is due to his medical service. He based his opinion on a current review of available medical records, the statements of Dr. Bash, review of layperson statements, and the current records which do indicate a diagnosis of sleep apnea. He reasoned that Dr. Bash’s positive medical opinion was based on lay statements received after the Veteran’s diagnosis of OSA 32 years after service that involve recollections on him during service. He stated that medically basing diagnosis on the recollections of medical events by lay people several decades after the events that are being recalled is problematic. This is called recall bias and occurs because of time delay between the events and the date of the report and impacted by current knowledge of the presence or absence of a condition. As in this case, where the recall of individuals reports of lay people describing sleep apnea in a person who is currently known to have sleep apnea three decades after the incidents being recalled. Though it is highly likely that the individuals do recall this currently, it would be problematic to diagnose a condition based on this information medically. This can be reduced by reviewing data that was produced at the time of the proposed incidents. Review of the medical records of service that were made available for review do not show any medical records indicating that the Veteran was diagnosed with OSA during service. There are no records of traumatic injury to the Veteran which would be causative of damage that would be medically expected to have caused OSA at this time. Considering all of the medical evidence of record, specifically noting numerous varying opinions, the Board finds the opinion of the March 2019 VA examiner to be the most probative medical evidence of record. The examiner reviewed the case file and provided a thorough rationale as to the lack of a nexus. He specifically addressed why he found the private medical opinions to be flawed, and provided compelling rationale supporting said finding. As such, the Board affords the March 2019 VA opinion substantial probative weight. The Board acknowledges the Veteran’s July 2019 correspondence which contends that the March 2019 VA examiner’s opinion was inadequate because it relied solely on the absence of medical evidence, specifically citing the ruling in Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, he contends that the examiner does not have the requisite expertise to determine that the lay statements were subject to recall bias. The Board disagrees. First, the March 2019 VA examiner did not rely solely on the lack of medical evidence of OSA in the Veteran’s STRs; conversely, he specifically stated his opinion was based on a review of all available medical records, the statements of Dr. Bash, review of layperson statements, and the current records. Thus, the Board finds that this opinion is adequate as it considered the Veteran’s lay statements and additional evidence of record, in combination with a lack of evidence within the STRs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Second, regarding the Veteran’s contention as to the examiner’s expertise as it relates to recall bias, the Board recognizes this argument as an attempt question the competence of the examiner. The Board notes that the questions of “whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries.” See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). However, this presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.” Id. at 1381. Here, the Board finds that the Veteran’s challenge is one of a general assertion, and therefore does not shift the burden to VA to establish the examiner’s qualifications by providing information about those qualifications to the Veteran. The Veteran cites a Wikipedia article that refers to medical scenarios involving recall bias. The examiner listed his title as a medical doctor and the Veteran does not offer any challenge to that title, in other words, he does not challenge that the examiner is a medical doctor. Nor does he provide any argument or evidence that a medical doctor would not have the competence to address recall bias, a term which, by the Veteran’s own citation to Wikipedia, is one present in medical contexts including, by his citation, disease or psychiatric condition, which appears rather broad. As such, the Board finds that the March 2019 VA examiner is competent, and his opinion is adequate for VA purposes. The Board also acknowledges that the Veteran has submitted evidence in the form of medical articles that the Veteran purports link his current diagnosis of OSA to his time in service. However, these articles do not speak to the Veteran’s own diagnosis or whether such a relationship exists in the Veteran’s specific case, or facts very similar to his case. Thus, these articles are not entitled to significant probative weight in this appeal. The Board acknowledges the Veteran’s assertion that his current sleep apnea was caused by or otherwise related to his active service. However, the Board finds that the Veteran lacks the adequate medical expertise to render a medical opinion as to the etiology or cause of his diagnosed disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). As such, the Veteran’s assertions are not competent or probative evidence to determine whether the Veteran’s current sleep apnea disability was caused by or related to his active service. Based on the evidence as described above, the Board finds the preponderance of the evidence weighs against a grant of service connection for the Veteran’s OSA. Therefore, the Veteran’s claim of entitlement to service connection for OSA must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, Associate 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.