Citation Nr: 21005249 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 13-03 385A DATE: January 29, 2021 ORDER Entitlement to service connection for sleep apnea, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran has a current diagnosis of sleep apnea, but it is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from April 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). As a preliminary matter, the Board notes that this claim has previously been before the Board; first in July 2018, and then again, in July 2020. Both times the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In consideration of this appeal, the Board finds that there has been substantial compliance with the July 2020 remand directives, and as such, will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea, to include as due to exposure to herbicide agents, is denied. The Veteran contends that his sleep apnea disability began during his active duty service and has continued ever since. Specifically, the Veteran asserts that he has had trouble sleeping since service and that he was told during service, by fellow Marine Corps members, that they observed the Veteran stop breathing during the night while he slept. See e.g., January 2016 notice of disagreement; October 2015 claim. Additionally, the Veteran contends that his current sleep apnea is a result of his exposure to herbicide agents during his active service in the Republic of Vietnam, that his sleep apnea began in service (as evidenced by the cessation of breathing during sleep), and has continued since then. See March 2020 VCAA notice acknowledgment. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran served on active duty in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, the Veteran’s service treatment records (STRs) document no complaints or reports of sleep apnea, nor any symptoms suggestive of sleep apnea (such as snoring, gasping for breath, or breathing cessation). The Veteran’s February 1970 separation examination listed no defects or diagnoses and reflected that the Veteran had no clinical abnormalities at that time. See February 16, 1970 separation examination, report of medical examination. The earliest evidence of sleep apnea is an August 2015 VA treatment record that reflects that the Veteran requested a consult to be tested for sleep apnea. At this time, the Veteran reported that he has always had difficulty falling asleep and was advised that he may have sleep apnea. Additionally, VA treatment records reflect that the Veteran reported sleeping only two to four hours per night, and that his significant other observed and reported periods of apnea during the Veteran’s sleep. See September 2, 2015 VA addendum note. A September 2015 sleep study shows a diagnosis of obstructive sleep apnea (OSA). An October 2015 sleep medicine consult indicates that the Veteran was referred to the sleep clinic for treatment, and that his symptoms included snoring, witnessed apneas, and excessive daytime sleepiness. See October 30, 2015 VA sleep medicine consult note. The Veteran was afforded a VA examination for his sleep apnea in June 2019. The June 2019 VA examiner indicated that the Veteran was diagnosed with obstructive sleep apnea via a sleep study in September 2015 and was placed on a CPAP machine for treatment and management. The Veteran again reported that he has suffered from sleep problems since 1969, and that his fellow Marines noticed that he was not breathing in the middle of the night while on active duty. The VA examiner noted that the Veteran requires the use of a CPAP machine. The VA examiner stated that “[w]hile VBMS includes personal testimony with symptoms of pauses, these self-reported statements are not diagnostic of sleep apnea. Snoring or gasping is not diagnostic for sleep apnea as these symptoms can occur in those who do not have the condition. As noted by the American Sleep Apnea Association, ‘a definitive diagnosis of sleep apnea can be made only with a sleep study.’ There is no objective documentation for the diagnosis of, complaints of, or treatment for OSA in service or within one year of discharge. His diagnosis of OSA was 45 years after separation. As such, this examiner does not find evidence of OSA directly due to service.” As the June 2019 VA examiner did not adequately consider the Veteran’s lay contentions regarding the onset and continuity of his disorder, as well as whether the Veteran’s obstructive sleep apnea was related to his exposure to herbicide agents during service, an additional medical opinion was needed. Subsequently, in accordance with the Board’s remand in July 2020, an addendum medical opinion was obtained addressing the etiology of the Veteran’s current sleep apnea, and whether it had any nexus to his active military service. The opinion was obtained in September 2020. The September 2020 VA examiner opined that the Veteran’s current obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The September 2020 VA examiner stated “[t]here is no evidence of any sleep disturbance, including OSA, while in service, at separation, or proximate to service. Despite the Veteran's submitted statements and complaints of "trouble sleeping" and non-substantiated buddy observations of snoring and gasping, the diagnosis of OSA requires a sleep study to confirm. The historical, non-substantiated buddy statements are essentially the Veteran's statement. It is highly unlikely that the Veteran would have a span of 45 years from service to complaints or diagnosis, if the onset [of the condition] was during service. The Veteran's complaints do not diagnose OSA, and if conceded, could have multiple other causes. Therefore, it is unlikely that the Vet's OSA had its nexus in service. This includes exposure to herbicides. Agent Orange does not cause OSA. This is an accepted medical fact. The current, widely accepted, peer-reviewed medical literature does not support such a contention. OSA is due to upper airway obstruction associated with apneic episodes. Additionally, it would be unusual statistically for a young, healthy, male to develop OSA.” Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that his current sleep apnea was incurred in or is the result of any established event, injury, or disease during active service. First, regarding presumptive service connection, while the Veteran states that he had symptoms of sleep apnea while in service, a continuity of symptomatology for sleep apnea cannot be established as his current diagnosis of OSA is not listed under 38 C.F.R. § 3.309. Also, sleep apnea is not a disease caused by exposure to herbicide agents, as defined by the regulation. See 38 C.F.R. §§ 3.309(e). Therefore, presumptive service connection on these bases is not for application. The claim is also denied on a direct basis. First, as mentioned above, the Veteran’s STRs are negative for any indications of sleep apnea. Moreover, the February 1970 separation examination shows normal "lungs and chest." Further, the June 2019 and September 2020 VA examiners opined that the Veteran's sleep apnea is not related to his military service, to include his presumed exposure to herbicide agents. Specifically, the VA examiners thoroughly reviewed the record (to include the lay statements of the Veteran regarding the onset and continuity of symptoms) and found that the Veteran's sleep apnea was not related to his military service as there was a significant and distinct delay between his military service and the report of or complaint of symptoms precipitating a diagnosis. Additionally, the September 2020 VA examiner clearly indicated that while it is true that the Veteran may have experienced such symptoms prior to his formal diagnosis in 2015 (such as snoring or breath cessation), they could have been attributed to other conditions or disorders and currently, sleep apnea may only be diagnosed through a sleep study, which did not occur until 2015. As the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to their opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 295; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran contends that his sleep apnea is related to his military service, the Board accords these statements regarding the etiology of this disorder little probative value as the Veteran is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is outweighed by that of the medical examiner. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Regarding the statements that the Veteran’s sleep apnea symptoms began in service, the Board assigns less probative value to these, as they are contradicted by the contemporaneous records and medical evidence. Firstly, as indicated by the September 2020 VA examiner, the Veteran’s claimed symptoms in service cannot be solely attributable to his sleep apnea alone without a sleep study; the symptoms he experienced then could be attributed to other medical causes. Secondly, although the lay statements made in conjunction with his claim note symptoms in service, STRs showing contemporaneous reports of sleeping problems are noticeably absent from the record, including complaints of cessation of breathing and excessive snoring. Furthermore, post-service treatment records, prior to the Veteran's claim, reflect complaints and concern for sleep apnea symptoms in August 2015, long after the Veteran's service. In summary, the Board finds that service connection for sleep apnea is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.