Citation Nr: 21062613 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-34 167 DATE: October 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of evidence shows that the Veteran's obstructive sleep apnea was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in United States Navy from October 1982 to April 1990, June 1999 to September 1999, October 2001 to October 2002, and February 2003 to October 2003. He served on active duty in the United States Air Force from July 2008 to December 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. The Board remanded the issue on appeal for additional development in November 2019. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In June 2019, the Veteran testified at a Board hearing before a Veterans Law Judge who is now no longer employed by the Board. A transcript of that hearing is associated with the claims file. Current law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As that person is no longer available, the appeal has been reassigned to the undersigned Veterans Law Judge for a decision. 38 C.F.R. § 20.106(b). The Veteran was notified of this in written correspondence dated August 11, 2021 along with his right to request another optional Board hearing by replying within 30 days. The Veteran or his representative did not respond to that letter regarding the assignment of a new Veterans Law Judge and his option to have another hearing within the 30-day time limit, and as such, the Board will proceed with the adjudication of this appeal. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Obstructive Sleep Apnea General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran asserts that his diagnosed sleep apnea is due to his service, to include the antimalarial mefloquine medication he took on his last overseas deployment in 2008-2009. He also asserts that other environmental hazards could possibly contribute to his sleep apnea. The Veteran's initial active service from 1982 to 1990 and subsequent periods of his reserve service to 209 are silent for any diagnosis of sleep apnea. The Veteran is later treated for stress-related mental disorder symptoms that include chronic sleep impairment and insomnia, but there are no mention of sleep apnea or related symptoms during his active and reserve service. During a February 1993 annual military medical examination, the Veteran noted that he had no sleep problems. After a 1999 deployment to southwest Asia, the Veteran received a post-deployment examination, and on his health questionnaire, he noted there were no sleeping problems. The Veteran received an August 1999 separation physical examination, and neither the Veteran nor the military examiner noted any complaints about sleep problems. The Veteran received a periodic physical examination in October 2001, and noted in the workup that he had not experienced any sleep problems. Following a 2002 deployment to Italy, the Veteran filled out a post deployment health questionnaire where he stated experienced no sleep problems of any kind. After another 2003 deployment, the Veteran received a post-deployment examination, and on his health questionnaire, he noted there were no sleeping problems. The Veteran reported for sick call in September 2006, citing insomnia, which he blamed on right shoulder pain. No other conditions were noted, to include sleep apnea. A prescription sleep aid was prescribed. A November 2006 treatment note during a period of active service indicated the Veteran experienced premature ventricular contractions that he blamed on inadequate sleep. No mention of sleep apnea was made. During inactive service back in the US, the Veteran worked as a police officer and received a periodic miliary medical examination in January 2007. The Veteran did not report any sleep problems, and the examining physician did not note any sleep problems of any kind on the examination form. The Veteran reported to sick call in September 2008, complaining of sleep problems due to his right shoulder condition. He was prescribed pain killers for the shoulder. A January 2009 treatment note during a period of active service indicates the Veteran reported sleeping problems along with increased stress and anxiety, and that he requested to see "combat stress." The Veteran also attributed his sleep problems to the use of the antimalarial mefloquine. No mention of any sleep apnea problems was noted. The Veteran received a VA examination for his claimed sleep apnea in April 2015. The examiner noted the previous diagnosis of obstructive sleep apnea from a VA sleep study in January 2014 and that the Veteran requires the use of his CPAP machine at night. Continuous medication was not required, and the examiner noted the Veteran's sleep apnea did not impact his ability to work. This examiner provided a negative but narrow opinion for direct service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's sleep apnea was incurred in or caused by the exposure to environmental hazards in southwest Asia during service. The examiner's rationale was that medical literature has not stated that environmental hazards in southwest Asia are a risk factor for the development of sleep apnea. No other discussion of the etiology and/or the possible nexus of the Veteran's sleep apnea to service was noted by this examiner. In June 2016, a private physician of the Veteran provided a statement where the doctor noted the Veteran has had sleep problems for 18 years, and is known for a chronic insomnia which has left the Veteran without a good night's sleep dating back to around 2009. In August 2016, the Veteran's spouse provided a lay statement noting her husband, the Veteran, can only sleep five hours a night, and that she has noted he would sometimes stop breathing at night. This spouse noted that prior to the Veteran deploying to Afghanistan in September 2008 that he slept normally with no symptoms of disrupted sleep. The Veteran testified in a June 2019 Board hearing before a Veterans Law Judge that he developed obstructive sleep apnea after returning from a deployment to Afghanistan. The Veteran theorized that his exposure to environmental hazards during his deployment had led to the sleep apnea. The Veteran's spouse testified that she had witnessed periods of sleep apnea for the last five years. The Veteran stated prior to his current continuous positive airway pressure (CPAP) therapy that he used to feel more daytime sleepiness and had to take more frequent daytime naps, and then he wouldn't feel refreshed upon wakening. He also reported he saw a sleep specialist and had a sleep study done in January 2014. The Veteran received another VA examination for his claimed sleep apnea in March 2020. This examiner noted a previous diagnosis of obstructive sleep apnea from January 2014 and the Veteran's claim that his sleep apnea first manifested while deployed to Afghanistan from September 2008 to April 2009. The Veteran was noted to use his CPAP machine and continuous medication for the sleep apnea was not required. The examiner noted persistent daytime hypersomnolence. A sleep study from January 2014 performed at a VA medical facility noted a diagnosis of obstructive sleep apnea. This March 2020 VA examiner provided an opinion for direct service connection, stating that the Veteran's diagnosed sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the Veteran's service records, both during active service and later during his inactive reserve service, were completely silent for any notations specifically regarding sleep apnea, to include snoring, fatigue, apnea, or any suspected incidents of interrupted sleep. The examiner noted the Veteran had reported over time, during service, that he had sleep problems, to include insomnia, but also that the Veteran is service connected for a psychiatric disorder where insomnia and chronic sleep impairment are part of the symptomatic presentation. The examiner noted that the Veteran never specifically complained of any sleep apnea problem during service. The examiner also addressed the Veteran's claim that his mefloquine taken as required by a 2008-2009 deployment caused his sleep apnea, saying that while mefloquine has been tied to neurological problems affecting sleep, to include insomnia, in the medical literature, that the drug has not been linked specifically to sleep apnea, a physical problem that involves the breathing airways. The examiner noted the Veteran exhibited the primary risk factor for obstructive sleep apnea, that of obesity. The examiner indicated medical records for the Veteran noted a "Mallampati 4" airway, that is, severe upper airway obstruction, and that there had been no note in any of the Veteran's service records during active service that he had symptoms of or a diagnosis of obstructive sleep apnea. The examiner concluded that the records indicated no event or exposure during service that would have precipitated obstructive sleep apnea. This examiner noted the Veteran's service-connected unspecified trauma and stress disorder, and how his examiners and treatment providers have documented sleep issues, to include chronic impairment and insomnia. This March 2020 examiner took care to distinguish the documented sleep issues from the Veteran's trauma disorder from the claimed sleep apnea, in that the Veteran has multiple and significant sleep apnea risk factors unrelated to service, to include male gender, progressive weight gain since active service, advancing age, and a continuous smoking history since 2001. See Mittleider v. West, 11 Vet. App. 181 (1998). The examiner noted that PTSD and other patients with trauma disorders frequently have insomnia, difficulty falling asleep or staying asleep, and often have nightmares resulting from their stressors. The examiner continued, noting that those displayed sleep problems are not "synergistic" with obstructive sleep apnea, and that while it is possible for a trauma disorder and sleep apnea to occur together, that coincidence and correlation are not equivalent to causation or even aggravation from one to the other. The examiner continued, noting that sleep apnea is a disorder characterized by obstructive apneas and hypopneas caused by repetitive collapse of the upper airway during sleep, which is a different type of display than the sleep issues described in the Veteran's mental disorders examinations and treatment notes. This examiner also further discussed how the risk factors of gender, increasing body weight, craniofacial or upper airway soft tissue abnormalities, and smoking increase the incidence of sleep apnea. The Board finds the VA examination reports and opinions to be of great probative value, along with both the VA treatment notes and private treatment regarding the Veteran's claimed sleep apnea disability. Indeed, the VA examiners considered the Veteran's contention, the claims file, and clinical medical evidence before providing a negative opinion for direct service connection, to include addressing all theories of etiology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners' negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). Additionally, the second VA opinion writer distinguished the sleep impairment symptoms of the Veteran's trauma disorder from his claimed symptoms of his sleep apnea. See Mittleider v. West, 11 Vet. App. 181 (1998). Significantly, the opinion also offered the non-service-related factors believed to be responsible for the disability at issue. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran, along with his spouse via the supplied statements, are competent to testify about his symptoms relating to his claimed sleep apnea condition. However, there is nothing in the record to suggest that the Veteran or his spouse have the appropriate training, experience, or expertise to render a medical opinion regarding etiology of his sleep apnea, especially in light of his trauma disorder diagnosis and its associated sleep problems. 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). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board acknowledges the Veteran's statements that his sleep apnea could be related to service. However, the Board notes that the Veteran's service treatment records, to include reports of medical history, are silent for any treatment or complaint of any sleep apnea condition or related distress during active service and up until January 2014, over five years after active service ended. A negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also note inconsistencies in the Veteran's statements over time pertaining to multiple details related to his sleep apnea claims that reduce the probative value of his statements. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam). The Board notes the private medical statement from August 2019 by Dr. S.C. in favor of a possible nexus to service, but also considers that opinion to be of no probative value. The conclusory statement that the Veteran's sleep apnea resulted from service has no rationale or discussion, and there is no indication that Dr. S.C. actually had access to the Veteran's service medical records or history. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also notes that the Veteran was seen in November 2012, after active service but prior to his original claim, by a private ears, nose, and throat physician for nasal and sinus issues, and no mention is made by either the Veteran or that doctor regarding any sleep apnea issues. The Board notes that VA examinations in September 2018 and July 2021 for mental disorders that have diagnosed a now-service-connected unspecified trauma and stress disorder in the Veteran both document chronic sleep impairment and insomnia. 38 C.F.R. § 4.14, "Avoidance of Pyramiding," provides that "[t]he evaluation of the same disability under various diagnoses is to be avoided" and that "the evaluation of the same manifestation under different diagnoses [is] to be avoided." In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court decided a case involving a facial injury that resulted in three distinct symptoms served by three different diagnostic codes, and the court found separate ratings appropriate: "The critical element is that none of the symptomatology for any one of these three conditions is duplicative of or overlapping with the symptomatology of the other two conditions." In Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), the Federal Circuit "agree[d] with the Veterans Court that two defined diagnoses constitute the same disability for purposes of [38 C.F.R. §] 4.14 if they have overlapping symptomatology." As such, then, the Board considers that the chronic sleep impairment and insomnia symptoms documented under the Veteran's service-connected unspecified trauma and stress disorder would be duplicative and therefore pyramiding if used to relate a sleep apnea diagnosis back to service. Amberman, 570 F.3d at 1380-81; 38 C.F.R. § 4.14. Upon review of the record, the Board concludes that entitlement to service connection for sleep apnea is not warranted. The Board notes a current diagnosis of the sleep apnea disability in January 2014, and thus the requirement for a current disability is shown. The Veteran is currently service-connected for an unspecified trauma and stress disorder with noted symptoms of chronic sleep impairment and insomnia. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted, along with that of his spouse. However, the Veteran's service medical records, to include all examinations, are silent for any existing sleep apnea or related condition at the time of separation, and, and there is no competent evidence to tie the current assertion to any in-service disease or injury. Two VA examiners have extensively discussed all of the Veteran's sleep apnea disability and symptoms and all possible risk factors raised by the record, and opined that sleep apnea is not related back to active service or related to any other service-connected disability. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed sleep apnea disability was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a sleep apnea disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.