Citation Nr: 21061492 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-57 124 DATE: October 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT Sleep apnea was not noted in service or for many years thereafter, and there is no evidence linking the current sleep apnea to service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from October 1989 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held in August 2019. However, a complete transcript of that proceeding was unable to be produced. The Veteran was contacted and offered the opportunity to testify at another hearing which he declined in an October 2019 Correspondence. This claim was last before the Board in March 2021 where it was remanded for additional development. 1. Entitlement to service connection for obstructive sleep apnea The Veteran is seeking entitlement to service connection for obstructive sleep apnea. He reports that during his time in service, he started to develop tiredness and lack of sleep due to being in service and its changing and odd sleeping habits. See April 2021 correspondence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence weighs against finding that the condition is related to service. Service treatment records are negative for complaints or findings of sleep apnea or sleep disturbance. On February 1993 Report of Medical History denied frequent trouble sleeping. Following service, VA treatment records show the Veteran denying restless sleep in 2005 and 2006. September 2014 depression screen noted the veteran denied trouble falling or staying alseep, sleeping too much, feeling tired or having little energy.VA treatment records show the Veteran was not diagnosed with sleep apnea until January 2016, more than 20 years after his separation from service. A VA examination was obtained in August 2021. The VA examiner opined that the Veteran's current obstructive sleep apnea is less likely than not related to service. The examiner noted that sleep apnea occurs when the muscles in the back of the throat relax. These muscles support the soft palate, the triangular piece of tissue hanging from the soft palate (uvula), the tonsils, the side walls of the throat and the tongue. When the muscles relax, the airway narrows or closes as the person breathes in. The person cannot get enough air, which can lower the oxygen level in their blood. The brain senses the inability to breathe and briefly awakens the person from sleep so that they can reopen their airway. Snorting, choking or gasping is common. This pattern can repeat itself five to 30 times or more each hour, all night, impairing the ability to reach the deep, restful phases of sleep. (Mayo Clinic, 2021). The examiner further stated that sleep apnea is a physical manifestation of the tissues of the body not having enough tone and the tissue is then allowed to block the airway to cause sleep apnea. The examiner noted there is no evidence that the service caused decreased tone in his tissues, and the Veteran denied any nose/ throat trauma during his time in the military. The examiner noted the Veteran may be groggy from sleep apnea but there is no evidence to suggest that this is service related. While the Veteran has reported having symptoms during and since service, the Board finds his denial of frequent trouble sleeping on his separation Report of Medical History and denying restless sleep during VA treatment in 2005 and 2006 to be more credible and probative than assertions made for purposes of seeking VA benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements"). To the extent that the Veteran believes that his current disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of sleep apnea is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of sleep apnea is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. In sum, the competent, credible, and probative evidence is against the claim, and service connection is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.