Citation Nr: 21063694 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 13-19 249 DATE: October 15, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's diagnosed obstructive sleep apnea did not manifest during active service and was not caused or aggravated by an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1986 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board most recently remanded this issue to the RO in June 2021 for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for sleep apnea The Veteran contends that he is entitled to service connection for obstructive sleep apnea (OSA). Service treatment records are associated with the claims file. The Veteran explicitly denied trouble sleeping and easy fatigability on an October 1998 overseas self-completed screening form. A July 2004 service treatment record (STR) states that the Veteran experienced a few seconds of sleep apnea while in recovery from general anesthesia. The Veteran reported that he had no trouble sleeping in military physicals conducted in December 1992, May 1997, December 2002, and on the April 2006 separation exam. VA treatment records reflect that the Veteran was diagnosed with mild sleep apnea in November 2007. August 2008 VA treatment records reflect that the Veteran exercised on an elliptical. A private consulting physician provided a medical evaluation in August 2009. The consultant determined that the Veteran's current sleep apnea was related to service because the Veteran and his spouse reported symptoms of sleep apnea continuously from the 2004 incident. The consultant also determined that the Veteran's sleep apnea was caused by his morbid obesity, which was due to limited mobility and inability to exercise due to his service-connected back and lower extremity disabilities. The Veteran was afforded a VA examination for sleep apnea in August 2013. The VA examiner determined that because there was no evidence that the Veteran suffered from sleep apnea in service, there was no relationship between the Veteran's current sleep apnea and his military service. An addendum VA opinion was obtained in October 2017. Following an examination and review of the claims file, a VA examiner determined that the Veteran's current sleep apnea was less likely than not related to service. He explained that the July 2004 observed sleep apnea following a surgical procedure was related to the surgery. It was acute and resolved. The examiner determined that the Veteran's in-service explicit denials of sleeping problems in 1992, 2002, and 2006 were significant. The examiner also noted that the Veteran had five in-service knee surgeries between 1990 to 2004 and there were no other indications of sleep apnea. The file contains an undated statement from the Veteran's spouse, received in January 2019. The spouse reported that she married the Veteran in 2002 and that she observed snoring and interrupted breathing at night and appeared tired during the day. Also, in January 2019, the Veteran submitted a medical study in a Turkish journal addressing a "link" between OSA and fibromyalgia (now service-connected). The study reviewed the history of 60 patients and found that 50 percent had both OSA and fibromyalgia. The authors acknowledged the limited number of patients and that additional studies were advised. The study found that hypoxia affected muscle dysfunction suggesting that apnea aggravates fibromyalgia and not the reverse. Another VA opinion was obtained in July 2021. The examiner reviewed the Veteran's claims file and determined that OSA was less likely than not related to service. The examiner explained that the Veteran's OSA was due to upper airway obstruction associated with apneic episodes, and there was no evidence of OSA while in service, or at separation. The examiner went on to explain that the in-service post-operative sleep apnea did not suggest OSA, because such events are common post-op and do not constitute OSA. Instead, they are due to central nervous system depression associated with general anesthetic. The examiner also provided an opinion regarding whether the Veteran's obesity was an intermediate step to OSA. He explained that obesity is multifactorial, including, but not limited to family history, caloric intake, caloric expenditure and exercise, basal metabolic rate, eating disorders, attitude towards exercise, timing of meals and snacks, quality of food partaken. The examiner determined that there was no evidence the Veteran had an eating disorder attributable to a service-connected conditions, and although the Veteran's service-connected conditions "may have limited exercise to some degree," it "would not have precluded exercise completely." The examiner explained that the Veteran's service-connected disabilities would not have precluded him from all forms of exercise. He listed occupational therapy, physical therapy, water exercises, and low impact exercises as examples, and stated that "obesity cannot be attributed simply to a lack of ability to exercise and more likely than not is due to excessive caloric intake not attributed to an eating disorder." According to the STRs, the Veteran's weight was 177 pounds in July 2004, making his BMI was 30.4. He had a BMI of 30.9 in July 2005. The examiner concluded that because the Veteran was "clearly obese" prior to separation, it is less likely than not that his obesity was due to his inability to exercise due to the service-connected conditions. The examiner explained that the Veteran was diagnosed with mild OSA in 2007. The examiner concluded that had the onset of OSA been while the Veteran was in service, the Apnea-Hypopnea Index obtained at the sleep study almost certainly would have been higher. "Therefore, it is less likely than not that the [V]eteran's service-connected conditions posed an intermediate step for the [V]eteran's development of obesity and it is less likely than not that the obesity itself caused [V]eteran's OSA. Obesity is a risk factor. This does not establish cause and is one of many risk factors, including family history, body habitus, neck length and circumference, sleep position and sleep hygiene. Therefore, it is less likely than not that the [V]eteran's OSA had its nexus service, and it is less likely than not [V]eteran's obesity served as an intermediate step due to service-connected conditions." The examiner found it probative that the Veteran denied frequent trouble sleeping several times in service. He explained that trouble sleeping is "a hallmark of OSA." The examiner also considered the reports of in-service snoring but stated that the lay statements did not establish OSA. "Snoring, easy awakening, insomnia, difficulty falling asleep, movements during sleep, fitful sleep, choking, gasping, daytime somnolence and fatigue, etc. are general symptoms and may be attributable to multiple different conditions and do not establish the diagnosis." The examiner concluded that, "it is less likely than not that the [V]eteran's OSA had its nexus in service. It is less likely than not that the [V]eteran's service-connected conditions caused the [V]eteran's obesity, as the [V]eteran was obese while in service without evidence of OSA. It is less likely than not that said obesity alone caused the [V]eteran's OSA. There is no evidence that the [V]eteran's OSA has been aggravated beyond its natural course due to any cause. The natural course of OSA commonly requires adjustments of CPAP or changes in modality of treatment. These do not constitute aggravation beyond the natural course." In light of all the evidence of record, the Board finds that the weight of competent and credible evidence is against finding that the Veteran's sleep apnea was incurred or caused by service or a service-connected disability. The Board finds the July 2021 VA examiner's opinion to be the most probative with regard to the etiology of the Veteran's sleep apnea. The examiner's opinion is well supported by a very detailed rationale. There is no probative medical evidence tending to indicate that the Veteran's sleep apnea onset during or was caused by his service. The Board has considered the August 2009 private opinion and the spouse's observations but does not assign significant probative value. The August 2009 consultation report and failed to address the Veteran's inconsistent statements regarding his reported symptoms and the spouse's statements are inconsistent with several in-service denials of sleeping issues. Although competent to report her observations, the evaluation of the medical examiners warrants greater weight as to the onset of the disorder. The Board considered the August 2009 consultant's conclusions that the Veteran was unable to exercise due to his service-connected disabilities, but VA treatment records reflect that the Veteran was exercising following his separation from service and up to his sleep apnea diagnosis. The Board also considered the Turkish study, which was of record for the later examiner's review, and finds that it warrants less weight. It did not support causation or aggravation of OSA by fibromyalgia, but rather the reverse, and was also a very limited study finding only a 50 percent comorbidity and not specific to this Veteran's medical history. The Board considered the observations of the Veteran and his associated lay statements regarding his current symptoms and ongoing symptomology. The Board finds the Veteran's lay statements regarding his current symptomology to be credible. While the Veteran is competent to report symptoms, as a lay person, he is not competent to determine that these symptoms represent the onset of the current OSA disability in-service as this requires medical training and consideration of the entire medical history, and there is no indication that he has the requisite training or expertise to offer a medical opinion linking a current disability to service. See Jandreau v. Nicholson, 492, F.3d 1372 (Fed. Cir. 2007). In this case, the Board places less probative weight on the Veteran's reports of onset and continuity of sleep apnea symptoms since service, because they are inconsistent with the service records in which he failed to report symptoms during an examination when there was an opportunity to do so. Although the Veteran is competent to report symptoms, his failure to report symptoms and the lack of medical evidence in support of service connection may be taken into account by the Board. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board finds the July 2021 VA examination is entitled to significant probative weight. The VA examiner noted review of the Veteran's reports and in-service treatment and found that his sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA explained why the Veteran's post-surgery sleep apnea in service was separate and distinct from the current OSA. He also explained why the Veteran's reported in-service snoring did not mean that OSA was present. The examiner also addressed the Veteran's contentions that his service-connected disabilities caused obesity, which in turn led to OSA, but the examiner explained why that was unlikely. While the Board has thoroughly considered the Veteran's and his spouse's lay statements more probative weight has been given to the competent medical evidence especially the July 2021 VA examination. (continued next page) As such the Board finds that the Veteran's current obstructive sleep apnea is less likely than not related to active service. In summary, the Board concludes that service connection for sleep apnea is not warranted; as a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.