Citation Nr: 21004521 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-06 377A DATE: January 27, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s sleep apnea had its onset during active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from February 1962 to February 1966. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Service Connection The Veteran contends that sleep apnea was incurred in, aggravated by, or otherwise attributable to, active duty service. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Evidence and Analysis Service personnel records show that the Veteran was an electronic encryption systems technician. Personnel evaluations are uniformly positive and do not mention any problems such as lateness or sleeping on the job. The job description as a shop repairman of electronic equipment does not suggest that it was stressful or required extended periods of wakefulness. In a December 2020 statement, the Veteran reported that his job was stressful and that he could not stay awake on the job without the use of “dexies.” Service treatment records (STRs) are of record. During an induction physical examination in February 1962, the Veteran reported that he had scarlet fever as a child and reported a history of pain or pressure in the chest and heart palpitations. The examiner noted no residual heart abnormalities and no upper respiratory abnormalities. The Veteran was 66.6 inches tall and weighed 165 pounds. A January 13, 1965 treatment note discloses that that the Veteran received “Dexamyl for wt. control.” In the December 2020 statement, the Veteran reported that he was 160 pounds at that time, not overweight, and that the prescription was provided to address his sleep issues. The STR entry was part of a record of blood testing for an unrelated potential disorder and there is no mention of sleep difficulties or the reason for the medication. In the Veteran’s December 9, 1965 Separation Report of Medical History, the Veteran indicated that he has had or has both “pressure or pain in chest, shortness of breath, and palpitations of the heart,” but he denied frequent trouble sleeping. In the associated Separation Report of Medical Examination, the examiner states that “pressure or pain in chest and shortness of breath, relieved by yawning” with no mention of a chronic heart disorder or chronic sleep disorder including apnea. In August 2005, the Veteran sought treatment for shortness of breath on exertion for the past year as well as nighttime awakening because of stopped breathing. At that time he weighed 240 pounds. The clinician notes some heart function abnormalities that were evaluated as “low risk” but also noted that the symptoms could be associated with obstructive sleep apnea and ordered an evaluation. The Veteran underwent a polysomnogram (sleep study) in November 2005. He was diagnosed with sleep apnea. Records show that at that time he weighed 240 pounds. In December 2005, a VA clinician noted that the Veteran was scheduled for a continuous positive airway pressure (CPAP) device training, programming, and fitting. Subsequent records disclose continued use of a CPAP device. In September 2016, the Veteran underwent a VA examination for sleep apnea. The Veteran reported fatigue, sleepiness, and snoring during service including awakenings by aircraft noise. The examiner noted that the Veteran was provided diet pills but that there was no other evidence of a sleep disorder and that his reported sleepiness could have been due to a variety of sources including the aircraft noise. The record of evidence includes a many lay statements in which the Veteran described the onset, continuous nature, and discernable symptoms of sleep apnea, from his time in active duty service through the present. The Board finds that the Veteran is competent to report the onset of sleepiness and snoring but that they are inconsistent with the record that do not show stressful duties and also show his reports of awakening due to aircraft noise. On the other hand, it is unlikely that the “diet pills” were prescribed for weight control at the time as he was not overweight. It is possible that they were prescribed for alertness and not properly attributed to that reason. Nevertheless, at the end of service, the Veteran denied any sleep difficulty that suggests some transient reasons that were no longer present at the end of service when relieved from his duties and away from aircraft noise. Further, at the time of the referral for sleep study, he had gained significant weight to 240 pounds. Resolving the inconsistencies in the Veteran’s favor, the Board will assign probative weight to his reports of situational sleep difficulty and snoring, but the evidence of onset of interrupted breathing warrants low weight because it was not raised until many decades later. In Board remands in October 2019 and September 2020, the Board requested that VA examiner’s address the single record of Dexamyl for weight control, yawning to relieve chest pressure, and shortness of breath, all notations in the STR and called to attention by the parties to a Joint Motion for Remand. Upon a November 2020 VA addendum opinion (pursuant to the Board’s September 2020 remand directives), a clinician provided a negative nexus opinion. The clinician noted that the natural history of OSA is aggression over time and found that it was unlikely the veteran's diagnosis would have been mild in 2005 if onset had occurred while in service. As a rationale, the clinician emphasized the lack of evidence of sleep apnea in the Veteran’s STRs and that medications which existed at the time of the Veteran’s service would not proximately cause sleep apnea. While the Board acknowledges this VA clinician’s addendum opinion, it assigns diminished probative weight to it. Despite explicit directives, the clinician failed to consider the evidence that the Board identified and requested that it be considered. And, the clinician did not discuss the Veteran’s lay accounts, to include those of continuity of symptomatology, or the substantial weight gain after service. The Veteran contends that sleep apnea that was incurred in service. STRs, including the Veteran’s Separation Report of Medical History, disclose “yawning” and “pressure or pain in chest and shortness of breath.” These symptoms more likely are associated with the documented investigation of heart disorders from scarlet fever and were never confirmed. The suggestion otherwise by the JMR parties is speculative, not supported by any evidence, and has little merit. Dexamyl, a now discontinued drug, was used for appetite suppression but also contained an amphetamine compound. The Board may not make medical determinations which was the reason for requesting a medical opinion, but the drug may have had alertness properties. It still does not address interrupted breathing. Except for his denial of any problems on the discharge examination, the Veteran did presented consistent reports of continuity of sleep disturbances and very late reports of interrupted breathing. VA treatment records show post-service complaints and the results of a polysomnogram, albeit years after active duty service, provided a diagnosis of sleep apnea in November 2005. The Board recognizes that sleep apnea was not diagnosed during active duty service. There is doubt as to the exact onset of sleep apnea and such doubt is resolved in favor of the Veteran. The Board need not address other causes proposed by the Veteran including disturbances in circadian rhythm or altitude of his duty station, and fear of being attacked by foreign invaders in Alaska. To the extent that VA clinicians have provided negative medical opinions, such opinions imply that the Veteran did not have sleep apnea until a formal polysomnogram in November 2005. We find that this formal testing merely confirmed the suspicion of an apneic disease rather than establishing a commencement or start date. As the Board has issued two remand orders for adequate medical opinions that have not been provided, it finds that further remand orders would be futile. Therefore, upon resolving doubt in the Veteran’s favor, service connection for sleep apnea is granted. See 38 U.S.C. § 5107; Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.