Citation Nr: 21003966 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-02 738 DATE: January 25, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The Veteran has a present diagnosis of obstructive sleep apnea. 2. There is no in-service injury, disease, or event related to sleep apnea. 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. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from June 1987 to January 1995. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for obstructive sleep apnea. The case has been before the Board of Veterans’ Appeals (Board) previously. In January 2019, the Board denied the appeal for service connection for obstructive sleep apnea. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Joint Motion for Remand, the Court vacated the Board denial and remanded to address certain evidence and to decide whether a VA examination and/or opinion was warranted. In January 2020, the Board remanded the case for a VA examination and opinion. A VA examination and opinion were obtained. Accordingly, the Board finds that there has been substantial compliance with the terms of the remand and that the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The evidence that the Court stated needed to be addressed is handled below. Service Connection for Obstructive Sleep Apnea Service connection can be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. The Veteran has a current diagnosis of obstructive sleep apnea, which was diagnosed in 2003. See January 2020 VA Examination; November 2017 Emergency Department H&P Note (noting the Veteran had multiple severe illnesses, to include sleep apnea). Accordingly, the present disability requirement for service connection has been met. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding of an in-service injury, disease, or event related to obstructive sleep apnea. The Board acknowledges that the Court expressed concerns over the Veteran’s reported shortness of breath and dizziness or fainting spells, which were listed in a September 1994 Report of Medical History. The Report of Medical History is the contemporaneous to service record of medical problems that a Veteran either states he or she has experienced or is experiencing or denies that he or she has experienced or is experiencing. Because of the expressed concerns regarding these two symptoms, the Board asked a VA examiner for an opinion as to whether the current sleep apnea is related to shortness of breath and/or dizziness or fainting spells. In a January 2020 opinion, the VA examiner opined that there is no direct causality of shortness of breath, dizziness, and fainting spells during service causing or leading to later obstructive sleep apnea. The rationale for the opinion identified multiple factors that do contribute to obstructive sleep apnea, and shortness of breath and dizziness or fainting spells are not among those factors. Some of the multifactorial elements that do contribute to obstructive sleep apnea include genetic factors, environmental factors, drug abuse, lifestyles, body habitus (in this case, the Veteran is overweight), sinus conditions, upper respiratory conditions, neurological deficit and/or idiopathic reasons. In short, there are many factors that may contribute to development of obstructive sleep apnea, but shortness of breath and dizziness or fainting spells are not symptoms or signs of obstructive sleep apnea, and do not contribute to its development. A review of the service treatment (medical) records further demonstrates that there is no in-service injury, disease, or event related to obstructive sleep apnea. The record reflects that the Veteran sought medical treatment for a variety of injuries and diseases, to include painful flat feet, low back spasm, pseudofolliculitis barbae, wrist injury, headache with nausea, allergic rhinitis, congestion, an upper respiratory infection, conjunctivitis, ankle pain, plantar fasciitis, thyroid nodule, external hemorrhoids, viral gastroenteritis, urethral discharge, rash, and herpes simplex I. In short, the record demonstrates that the Veteran knew how to obtain medical attention and sought medical care as needed, but did not seek treatment for obstructive sleep apnea, excessive sleepiness, or other sleep-related symptoms. In the September 1994 Report of Medical History associated with Medical Evaluation Board proceeding, the Veteran answered in a narrative section that he had bad health conditions and that he suffers from severe flat feet and chronic back spasm and a scratched cornea. He then checked “yes” to nineteen separate conditions, while not checking any symptoms to suggest obstructive sleep apnea. In a Medical Evaluation Board proceeding, the pertinent diagnoses were symptomatic pes planus and low back pain. The Veteran certified that this proceeding covered all medical conditions and that all records had been submitted. This proceeding would have been another situation where symptoms of obstructive sleep apnea would have been recorded, had they in fact been present during service or at this service separation examination. The September 1994 Report of Medical Examination for the Medical Evaluation Board proceeding shows that the examiner noted problems with the feet and the skin, but all other systems were deemed normal. At the January 2020 VA examination, the Veteran suggested that he had issues with snoring, restless sleep, excessive daytime sleepiness, and fatigue, which he reported he had experienced since 1994. The weight of the more contemporaneous evidence is against such a finding. The Veteran did not assert or complain of these symptoms at any point during service. These are symptoms of the sort that would have been recorded, had they been mentioned. (Continued on the next page)   Accordingly, the weight of the lay and medical evidence shows no obstructive sleep apnea symptoms during service and supports a finding that there was no in-service injury, disease, or event related to obstructive sleep apnea. The service treatment records are complete and obstructive sleep apnea diagnosis and/or symptoms are such that they would have been recorded had they occurred. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). As the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea, service connection must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.