Citation Nr: 21061289 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 14-05 819 DATE: October 1, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The evidence of record does not establish a causal relationship between an in-service event and the Veteran's sleep apnea. The preponderance of the evidence is against finding that the Veteran's sleep apnea was either proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to PTSD, have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to December 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated August 2012 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In July 2018 and January 2021, the Board remanded the Veteran's sleep apnea claim to the Agency of Original Jurisdiction (AOJ) for additional development. A Board hearing was held in July 2017. The hearing transcript has been associated with the Veteran's file. In an August 2020 correspondence, the Board notified the Veteran that the Veterans Law Judge who conducted his hearing was no longer employed by the Board. In correspondence received September 2020, the Veteran responded to this notification checking the option that reads, "I do not wish to appear at another Board hearing. Please consider my case on the evidence of record." Thus, the Board will proceed with adjudication of the Veteran's claim with the undersigned Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Service connection may also 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). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for sleep apnea, to include as secondary to PTSD The Veteran claims entitlement to service connection for sleep apnea, to include as secondary to PTSD. Following a thorough review of the Veteran's medical records, the Board finds that he is not entitled to an award of service connection. Direct Service Connection As an initial matter, the Board finds that the Veteran has satisfied the first element of both direct and secondary service connection, a current disability. A review of the Veteran's March 2019 VA examination shows the Veteran has obstructive sleep apnea that was diagnosed in 2008. See VA Examination dated March 2019. Therefore, the Board finds that the Veteran has satisfied the first prong of direct and secondary service connection, the existence of a current disability. The Veteran contends that his sleep apnea began while he was in service. See Hearing Transcript dated July 2017. Service treatment records (STRs) contain October 6, 1965 and November 20, 1969 Reports of Medical History in which the Veteran checked "no" in response to "have you ever had or have you now" frequent trouble sleeping. During his July 2017 hearing, the Veteran testified that he had sleep problems in the military which he described jerking to wake up and when sleeping next to the flight line, every time a plane would circle, crossing the barracks, it would knock him out of his bunk. He testified that he did not seek treatment because he thought it was normal. He also noted that no one else saw the sleep incidents that he described. The Veteran testified that he would doze off while on duty but not completely fall asleep. He also testified that when he would have to jerk and wake up in service, he did not know he stopped breathing but was informed of this through a sleep study. The Veteran's chronic sleep impairment and nightmares are separately compensated through the disability rating assigned for service-connected PTSD. See January 2021 Board decision. Therefore, the Board focuses exclusively on symptoms of sleep apnea for this appeal. In this case, the Veteran's recent statements reporting a long history of symptoms of sleep apnea are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his sleep apnea. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (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 if such a fact would ordinarily be recorded"). In particular, the Veteran's Reports of Medical History in 1965 and 1969 each affirmatively report several other medical complaints, but nothing related to sleep. In fact, they deny the existence of sleep symptoms. Based upon the language and context of the STRs, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that he was experiencing at that time. Therefore, his failure to report any sleep complaints at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. Moreover, the Veteran's statement that he did not know he stopped breathing during service but was informed by a sleep study refers to the sleep study in 2008. This statement does not serve as evidence of sleep apnea-disordered breathing in service, as no one witnessed this symptom in service and he is making an assumption that a symptom found in 2008 was present nearly forty years prior. The Veteran is competent to describe observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran himself is not competent to report that he stopped breathing while sleeping, as he is unable to observe his own breathing while asleep. Therefore, the Board finds that the Veteran has not satisfied the second prong of service connection for sleep apnea: evidence of an in-service disease or injury. Even if the Veteran's testimony were sufficient to establish an in-service injury or disease, the evidence does not show a causal relationship exists between the Veteran's current sleep apnea and his active duty service. Medical treatment records document that the Veteran began reporting continued problems with sleep disturbance in 2007, nearly 40 years after separation from service. In several medical treatment records from 2007, the Veteran reported continued problems with sleep disturbance (nightmares, frequent awakenings, and being a light sleeper). A January 2008 medical treatment record documented that the Veteran reported problems sleeping, which sounded like sleep apnea. A sleep study was ordered. A November 2008 sleep apnea clinic note documented information for a new patient evaluation and education for obstructive sleep apnea. The Veteran attended a sleep apnea follow-up in March 2009. Additionally, December 2009 and March 2010 medical treatment records showed assessments of obstructive sleep apnea with hypersomnia. A December 2010 VAMC treatment record showed a chief complaint of sleep problems. He used a CPAP for his sleep apnea. An April 2012 medical treatment record noted an assessment of obstructive apnea with hypersomnia. Additional medical treatment records ranging from 2007 to the present show complaints of and treatment for sleep apnea. In a Notice of Disagreement (NOD) dated September 2012, the Veteran reported, "I am having problems sleeping at night." During his July 2017 hearing, the Veteran reported that he had never had these kinds of problems before service and he still had the issues after service. The Veteran further testified that he never had occasion to talk to any of his medical care providers to trace whether the source of the issues was service. The Veteran's wife testified that she had been married to the Veteran for more than 29 years and when they first got married, she noticed his sleep apnea right away because he was jumping and screaming in the middle of the night. This places her knowledge of symptoms at about 1988, almost 20 years after the Veteran's separation from service. See Hearing Transcript dated July 2017. The Board finds the statements of both the Veteran's wife credible and probative. However, the Veteran's wife can only testify regarding continuity beginning about 20 years after separation from service and therefore her testimony cannot establish chronicity of symptoms since service. The Veteran was afforded a VA examination in March 2019 for sleep apnea. The VA examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service sleep disturbances. The examiner reasoned: He reports inservice sleep disturbance, per his discharge date was 1969 and there is a significant time gap until the diagnosis per sleep study in 2008 at the VAMC Durham and subsequent treatment with CPAP. The C-file is silent until 2008 with the initial sleep study in 2010 with the reevaluation sleep study for noncompliance. The Veteran made personal statement during the transcript recording of his sleep disturbances during deployment, however there was no medical treatment sought based on lack of knowledge at the time. However there was a large gap of time from the 1969 to early 70s until he was actually diagnosed in 2008, however based on the outlined information here and evaluation of the C-file, the opinion would not be changed unless there was a diagnosis made prior to 1969 and the Veteran's discharge. No nexus is established. In its January 2021 decision, the Board determined that the March 2019 VA examination was inadequate as the examiner seemed to have based the opinion on a lack of contemporaneous medical records. The Board remanded the claim for a new VA examination. Thereafter, in an April 2021 VA examination, the examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned: After reviewing the medical C-file records, there is no documentation during or shortly after military services of complaints or symptoms of sleep apnea. The 2017 hearing transcript stating sleep apnea started in the military was considered, but it was provided nearly 50 years after military service. It is my medical opinion to conclude that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In a June 2021 addendum opinion, the examiner provided, Although the Veteran claimed he had symptoms of sleep apnea during service, the service treatment records were silent of any complaints of sleep apnea, and there is no record of complaints or treatment for nearly 50 years from the claimed start of the sleep apnea. It is more likely that the sleep apnea was more recently caused by other risk factors, such as age, rather than by the Veteran's service. In a July 2021 addendum opinion, the examiner explained why the Veteran's statement of in-service sleep apnea symptoms was deemed not credible and why the absence of complaints of sleep apnea in the STRs and no treatment for nearly 50 years after service was found to be more credible. He wrote, Service treatment records and separation exam are silent for complaints of sleep apnea or symptoms related to sleep apnea. There is mention of mild hay fever with sinusitis, but it is an entirely different condition from sleep apnea. Separation exams also indicate there are no other significant illness or injury, which implies there are no complaints or symptoms related to sleep apnea. A negative opinion does not equate to the Veteran's statement being not credible. The standard for an opinion is at least as likely as not or less likely than not. The current evidence in the treatment records and separation exam do not have complaints of sleep apnea and explicitly states there are no significant illnesses or injuries other than high blood pressure and sinusitis, indicating there are no complaints or symptoms of sleep apnea. The only evidence for the presence of sleep apnea during service is the Veteran's testimony, which was provided almost 50 years after separation. Based on the evidence and in records and other factors over the past 50 years that could result in sleep apnea, primarily age and being male, it is less likely than not that the sleep apnea was incurred in or caused by service. There is no documentation during military services by a provider or Veteran self during military services of symptoms of complaints of sleep apnea. Medical C-file records are silent for sleep apnea during services or shortly after military services. 50 years after service is a long time that was elapsed to connect it to military services. The Board finds that there has been substantial compliance with the Board's January 2021 remand directives, as the opinions consider the lay evidence of sleep apnea in service and explain why it does not overcome the absence of contemporaneous medical records. Stegall v. West, 11 Vet. App. 268, 271 (1998); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The April 2021 VA examiner's opinion, as well as the addendum opinions provided in June 2021 and July 2021, provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds all three opinions adequate and probative. Moreover, these opinions are consistent with the contemporaneous medical evidence of record. A thorough review of the Veteran's medical records shows denial of symptoms in service and no treatment for, or diagnosis of, sleep apnea until many years following the Veteran's separation from active duty service. The Board finds that the question of whether a nexus exists between the Veteran's active duty service and his current sleep apnea is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical education or knowledge. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Because the Veteran does not have specialized medical training, experience, or knowledge, his opinion, no matter how sincere, is not competent nexus evidence. The Board finds that the preponderance of the competent and credible evidence does not establish an in-service injury or nexus for the claim of sleep apnea. Service connection cannot be established on a direct basis. Secondary Service Connection The Veteran has not raised the theory of entitlement to service connection for sleep as secondary to PTSD. The Board raised this theory sua sponte in the January 2021 remand. Following a thorough review of the Veteran's medical records, lay evidence, and medical opinion evidence, the Board finds no evidence to support a theory of service connection as secondary to PTSD. As an initial matter, the Board finds that the Veteran has satisfied the first element of secondary service connection, a current disability, as discussed above. As to evidence of a service-connected disability, the Veteran is service-connected for PTSD and degenerative disc disease of the back. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection on a secondary basis: evidence of a service-connected disability. Neither the Veteran nor the record raise the theory of secondary service connection based on the back disability. The Board will limit its analysis to the PTSD theory raised in the 2021 remand. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). Turning next to evidence of a causal relationship between the service-connected disability and the current disability, the Board finds the weight of the competent evidence does not support a nexus. In determining this, the Board finds the medical opinion of the April 2021 VA examiner and the addendum opinion of the June 2021 VA examiner to be probative and entitled to significant weight. The first evidence addressing any relationship between sleep apnea and the Veteran's service-connected PTSD was an April 2021 VA examination, provided in response to the Board's remand directive. The examiner reviewed the claims file and wrote: "The claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. There is no medical literature review that supports this condition is a complication or condition related to PTSD." The examiner then provided information from a Mayo Clinic article about obstructive and central sleep apnea and how they occurred. He also provided a list of all the risk factors of obstructive and central sleep apnea. He then wrote, The 2017 hearing transcript stating sleep apnea started in the military was considered, but it was provided nearly 50 years after military service. It is my medical opinion to conclude that the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. The VA examiner cited to publication details of the medical literature evidence supporting this rationale. He also provided that the likely etiology of the Veteran's sleep apnea was obesity. In a June 2021 addendum opinion, the examiner provided, "There is no medical literature review that supports that PTSD or adverse effects of trazodone causes complications or symptoms such as sleep apnea." The Board finds the opinion of the April 2021 VA examiner and the June 2021 addendum opinion to be probative, as they provide clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl, 21 Vet. App. at 124-25; Nieves-Rodriguez, 22 Vet. App. at 304. Thus, the Board finds both of these opinions are adequate and probative. There is no evidence supporting a nexus between sleep apnea and PTSD. The Veteran's chronic sleep impairment and nightmares are separately compensated through the disability rating assigned for service-connected PTSD. Therefore, service connection is not available on a secondary basis. Conclusion The Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes a causal relationship between the Veteran's sleep apnea and an in-service event or a causal relationship between the Veteran's sleep apnea and service-connected PTSD. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.