Citation Nr: 21001497 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-37 439 DATE: January 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has obstructive sleep apnea that is related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to February 1992, from October 2001 to October 2002, and from March 2003 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2019. A transcript of the hearing is of record. This matter was last before the Board in August 2019, when it was remanded for further development. 1. Entitlement to service connection for sleep apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). The Veteran contends that his obstructive sleep apnea (OSA) began in service and has gotten worse since he returned from Iraq. In May 2019, the Veteran testified that his unit was stationed next to a power plant that burned fuel. According to the Veteran, he had a “burning feeling” in service but did not know what it was. When he returned home, his wife noticed symptoms of snoring and stopping breathing at night. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of OSA, the preponderance of the evidence weighs against finding that the condition began during service or is otherwise related to service. Service treatment records (STRs) shows that in January 1992, the Veteran reported having problem sleeping. In December 2005, among other symptoms relating to PTSD, the Veteran endorsed sleep problems. The examiner noted that the sleep problems could be indicative of sleep apnea. Treatment records from January 2006 noted that the Veteran was diagnosed with severe obstructive sleep apnea, after a sleep study. The Veteran was afforded a VA examination in January 2020 during which he reported that he started having issues with sleep when he came back from Iraq. He also reported that when he came home, “he would blow his nose and black stuff would come out.” His wife told him he would snore and stop breathing in his sleep. The VA examiner opined that the Veteran’s OSA is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that a review of the STR’s shows no evidence of the diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty. The Veteran was released from active duty in February 2004 and was not diagnosed with OSA until January 2006. The examiner explained that observed snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing and insomnia are not pathognomonic for sleep apnea. Sleep apnea is diagnosed by polysomnography. Apnea/hypoxia index (AHI or PRDI) is the diagnostic standard for OSA. An AHI greater than 5 or PRDI greater than 15 indicates sleep apnea. Additionally, the examiner noted that people often will have episodes of gasping or brief times of stopping breathing however less than 5 per hour AHI or less than 15 per hour PRDI is considered normal. The examiner further explains that insomnia, sometimes erroneously referred to as “non-organic circadian rhythm sleep disorder,” is not a sign of sleep apnea and the two are mutually exclusive. Insomnia is a sleep disorder where people have trouble sleeping. They may have difficulty falling asleep or staying asleep as long as desired. Insomnia is typically followed by daytime sleepiness, low energy, irritability, and a depressed mood. In contrast, people with sleep apnea have no trouble falling or staying asleep. The examiner explains that definite risk factors for OSA include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Obesity is the best documented risk factor for OSA. The prevalence of OSA progressively increases as the body mass index and associated markers (e.g. neck circumference, waist-to-hip ratio) increase. Craniofacial and upper airway soft tissue abnormalities each increase the likelihood of having or developing OSA. Examples of such abnormalities include an abnormal maxillary or short mandibular size, a wide craniofacial base, tonsillar hypertrophy, and adenoid hypertrophy. The examiner notes that there is no peer reviewed medical literature to support a connection between exposure to burning fuel and OSA. Additionally, there is no peer reviewed literature that supports a connection between exposure to sandstorms and OSA. As the January 2020 opinion was provided following a thorough review of the claims file and included a detailed rationale that cited to medical literature, the Board finds this opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 302-04 (2008). There is no medical opinion to the contrary. While the Veteran and his spouse believe the Veteran has a current diagnosis of OSA that is related to service, as lay persons, they are not competent to provide an opinion as to the diagnosis or etiology of sleep apnea. The issue is medically complex, as it requires medical testing and medical expertise to determine. Thus, the lay opinions are not competent medical evidence of a diagnosis of sleep apnea or of a nexus between the Veteran’s current sleep apnea and service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The January 2020 VA examiner considered the lay evidence regarding the Veteran’s sleep symptoms immediately after service, including snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing and insomnia. The Board finds the opinion of the VA examiner significantly more probative than the lay assertions. There is no medical opinion to the contrary. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.