Citation Nr: 21004959 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-50 375 DATE: January 28, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Veteran’s OSA did not have its onset in service, and is not otherwise causally related to service, to include the claimed pulmonary exposures during service in Southwest Asia. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1978 to October 1983 and from October 1991 to April 1994. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a September 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for OSA. The Veteran’s Notice of Disagreement (NOD) was received in November 2015. The Statement of the Case was issued in September 2016 and the Veteran’s VA Form 9, substantive appeal to the Board was received in October 2016. In May 2019, the Veteran and his representative appeared before the undersigned Veterans Law Judge for a Board hearing. The transcript is of record. In November 2019, the Board remanded the claim for further development and adjudication. Entitlement to service connection for OSA. The Veteran seeks service connection for OSA. At the May 2019 hearing, the Veteran testified that his OSA was caused by various pulmonary exposures during his service in Southwest Asia. He also testified that he was diagnosed with OSA in 2004 or 2005 and that he did not have any problems with OSA prior to service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran’s service treatment records (STRs) are silent with respect to any complaints or treatments for OSA. In October 1997, the Veteran underwent a VA examination for mental health. He reported difficulty sleeping, indicating that he does not have too much difficulty falling asleep, but wakes up two to three times per night. The Veteran reported this difficulty for the most part since he got out of the military. The VA examiner reviewed the Veteran’s contentions and concluded that no diagnostic tests are needed. The VA examiner diagnosed the Veteran with alcohol and cannabis abuse. The VA examiner further indicated that the Veteran cannot be diagnosed with any sleep disorder due to his current use of alcohol and cannabis. The VA examiner noted that the Veteran did not have medical records available for review. In June 2005, the Veteran underwent another VA examination for mental health. The Veteran reported being able to go to sleep without problems but being unable to stay asleep. He reported waking up two to three times per night and being unable to go back to sleep. He stated that this happens two to three times per week. He indicated that he started having these problems when he came back from the Gulf War in 1992. There was no diagnosis or testing for OSA. A June 2005 VA treatment note indicates that the Veteran complained of trouble sleeping and indicated that his wife described him to be restless and snoring. A sleep study was recommended, and it was noted that his history was suggestive but not diagnostic of a sleep disorder. A July 2005 private sleep study indicated that the Veteran did not meet the criteria for OSA. The Veteran’s sleep latency was mildly reduced, and oxygen saturation remained above 90 percent throughout the night with no snoring reported. The Veteran was noted to have hypopneas of unclear clinical significance. The report noted that insufficient sleep may be a contributing factor if the Veteran’s main complaint is excessive daytime sleepiness. A September 2005 VA neurology note indicates that the sleep study results were not diagnostic of OSA or any other significant sleep disorder. An August 2006 VA treatment note indicates that the Veteran was issued APAP sleep equipment for OSA. A January 2009 VA split-night polysomnogram indicates that the Veteran was diagnosed with severe OSA. The Veteran’s respiratory events were associated with moderate intermittent oxygen desaturations. The Veteran reported being out of work for one year because of new regulations regarding sleep apnea. It was noted that the Veteran was diagnosed with OSA in 1996 and was on CPAP. It was also noted that he was a truck driver and new regulations required him to undergo a yearly sleep study in order to keep his license. A November 2009 VA treatment note indicates that the Veteran has OSA and is doing well on CPAP treatments. The Veteran’s VA treatment records indicate that he continued to received treatment for OSA. In May 2020, VA obtained a medical opinion in this case. The opinion was based on a review of available records as the existing medical evidence provided sufficient information. The Veteran was noted to have OSA, which was diagnosed in 2009. It was noted that the Veteran complained of trouble sleeping in 1996, had a negative sleep study in 2005, was issued a CPAP in 2006, and had a positive sleep study in 2009. It was noted that the Veteran’s OSA did not require continuous medication but required use of a CPAP machine. The VA examiner concluded that it is less likely than not that the Veteran’s OSA was incurred in or caused by service, to include the claimed injury or disease. The VA examiner indicated that the Veteran’s 1977 entrance exam was negative for sleep concerns and that his 1986 and August 1991 physicals were also negative. The VA examiner then cited the July 2005 sleep study which was negative for OSA. The VA examiner noted that when the Veteran was issued a CPAP in August 2006, there was no physician’s order associated. The VA examiner also noted that the Veteran’s VA treatment records contain a primary care note stating that the Veteran had a 1996 OSA diagnosis. With respect to this diagnosis, the VA examiner indicated that this is not corroborated by the medical evidence in this case. The VA examiner noted the Veteran’s weight in January 2009 during his sleep study to be recorded at 274 lbs. and his body mass index at 34 and indicated that the leading cause OSA is obesity and this is the most likely cause of the Veteran’s OSA. The VA examiner also noted that OSA was not diagnosed until 15 years after separation and that no medical evidence substantiated any injury or disease in service that would cause OSA. The VA examiner also indicated that the most common cause of OSA is excess weight and obesity, and that while a person sleeps, the throat and tongue muscles are more related, and the soft tissue can cause the airway to become blocked. The VA examiner cited other causes of OSA and cited appropriate medical literature in support of their conclusions. Based on the review of the entire record, the preponderance of the evidence supports the finding that the Veteran’s OSA did not have its onset in service, and is not otherwise causally related to the Veteran’s service, to include claimed pulmonary exposure in service. As such, service connection is not warranted. The Veteran’s OSA did not have its onset in service. The Veteran’s STRs and VA treatment records indicate that he was not diagnosed with OSA until January 2009. Moreover, a July 2005 private sleep study ordered by the VA ruled out a diagnosis of OSA. As such, the remaining question is whether OSA is otherwise causally related to the Veteran’s service. With respect to nexus, the Veteran indicated that he did not have OSA prior to service and that he believes pulmonary exposure in Southwest Asia. While the Veteran may report observable symptoms, he does not possess the medical expertise to provide a medical opinion in this case. The two issues are medically complex, as they require knowledge of interpreting complicated diagnostic medical testing and interpretation of medical records and studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran’s contentions with respect to a nexus in this case carry no probative value. The May 2020 VA medical opinion indicates that the Veteran’s OSA did not have its onset in service and is not otherwise causally related to service, to include claimed injury or disease. The VA examiner concluded that the Veteran’s OSA is likely a result of his obesity. In support of this opinion, the VA examiner indicated that the Veteran had a July 2005 sleep study negative for OSA, and that the Veteran was recorded to be overweight during the January 2009 sleep study. The VA examiner thoroughly reviewed the Veteran’s medical records and provided a full rationale for their conclusions. These conclusions are likewise supported by the Veteran’s VA treatment records. As such, the May 2020 VA medical opinion is afforded probative value. With respect to the VA primary care note indicating that the Veteran was diagnosed with OSA in 1996, the notation appears to be based on the Veteran’s self-reported history, without any corroborating medical evidence. Moreover, the notation is contradicted by the record in this case, specifically the July 2005 sleep study which was negative for OSA. While the Veteran reported having sleep trouble in 1996, these complaints were not attributed to OSA. With respect to the August 2006 issuance of the CPAP machine, as the May 2020 VA examiner noted, the notation does not contain an OSA diagnosis supported by clinical testing. Thus, the preponderance of the medical evidence does not support a finding that the Veteran’s OSA was causally related to service, to include claimed in-service pulmonary exposure in Southwest Asia. The Veteran was diagnosed with OSA fifteen years after service and OSA was specifically ruled out in 2005. Finally, the record in this case indicates that the Veteran’s OSA has a specific etiology likely related to his obesity. Accordingly, the preponderance of the evidence is against the claim for service connection for OSA, and it is therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.