Citation Nr: 21065180 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-56 624 DATE: October 25, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected coronary artery disease (CAD), is denied. FINDING OF FACT The preponderance of the evidence establishes the Veteran's sleep apnea condition was not present until more than one year following his discharge from service and is not etiologically related to his active service, to include as secondary to his service-connected disabilities. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected CAD, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1964 to September 1967 and from November 1967 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). When this case was last before the Board in June 2021, it was remanded for additional development. Specifically, the RO was instructed to provide a VA medical opinion which opined on the etiology of the claimed sleep apnea. An appropriate medical opinion was obtained. As such, the Board finds that the AOJ substantially complied with the directives in the June 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or is the result of a service-connected disease or injury, or that a service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Sleep Apnea The Veteran is seeking service connection for sleep apnea which he claims is etiologically related to his active-duty service. In the alternative, the Veteran claims that these disabilities could be etiologically related to his service-connected CAD, or the treatment thereof. The Board notes that the Veteran has current diagnosis of sleep apnea. See July 2021 VA Medical Opinion. Therefore, the central issue that must be resolved is whether the Veteran's current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has a currently diagnosed sleep apnea disability, competent medical evidence of record does not support that this disability was incurred in service or otherwise related to service. The Veteran's service treatment records (STRs) contain no complaints, treatment, or diagnosis of this condition. There are no treatment records for this condition while the Veteran was in service, and no medical examiner has given an opinion linking the Veteran's current disabilities to his active-duty service. Additionally, the Veteran was first diagnosed with sleep apnea in 2007, approximately 34 years after his separation from active-duty service. The Veteran initially provided a January 2015 private disability benefits questionnaire wherein he was diagnosed with obstructive sleep apnea, with the date of the diagnosis listed as September 18, 2007. However, the private examiner, Dr. P.C. did not provide an etiology opinion regarding this claimed condition. The Veteran's private medical records note his diagnosis of sleep apnea in 2007, however, they also do not provide an etiological opinion. The Veteran's child submitted a March 2015 lay buddy statement wherein he indicated that the Veteran sleeps with a CPAP machine. The Veteran's wife submitted a March 2015 buddy statement wherein she reported that sometime after the Veteran's heart attack, he began to stop breathing while he slept and that they later found out that he had sleep apnea and now uses a CPAP machine. In his July 2016 Notice of Disagreement, the Veteran reported that he believed his sleep apnea was related to his heart disability because they came to light at the same time. The Veteran continued to assert that his sleep apnea was related to his CAD in his October 2016 VA Form 9. In response to the Board's November 2019 Remand, the RO provided the Veteran with a January 2020 VA Sleep Apnea examination. Regarding the Veteran's diagnosed sleep apnea disability, the examiner opined that the Veteran's condition was less likely than not (less than a 50 percent probability) caused or aggravated by his service-connected CAD and/or his claimed hypertension. The rationale provided was that the weight of the medical literature does not support that the Veteran's CAD and hypertension are diagnoses pertinent to the causation of sleep apnea. The examiner continued that the weight of the medical literature supports that obstructive sleep apnea is a condition in which loose floppy tissues of the throat occlude the passage of air during sleeping. The examiner continued that the Veteran's CAD and hypertension are neither causes of, nor risk factors for, developing sleep apnea, and that the Veteran's conditions did not cause or aggravate his sleep apnea. In response to the Board's February 2021 Remand, the Veteran was provided with a March 2021 VA Medical Opinion in order for an examiner to opine on whether the Veteran's disabilities caused him to become obese as an intermediary step toward his sleep apnea. The examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran's obesity is caused by or related to, any of the Veteran's service-connected disabilities and/or the medication prescribed for such. The rationale provided was that the weight of the medical literature does not support that the Veteran's service-connected conditions of "coronary artery disease status post myocardial infarction," "bilateral hearing loss," and "hypertension" cause obesity or that obesity is caused by, secondary to, or aggravated beyond its natural progression by the Veteran's service-connected conditions. The examiner continues that the medications prescribed for such conditions similarly do not cause or aggravate obesity. The examiner continued that while the Veteran's service-connected disabilities may limit his physical activities none of the disabilities contributed to his elevated BMI and obesity. In response to the Board's June 2021 Remand, the Veteran was provided with a July 2021 VA Medical opinion which addressed direct causation of the Veteran's sleep apnea. The examiner opined that the Veteran's sleep apnea is less likely than not (less than a 50 percent probability) etiologically related to the Veteran's active-duty service. The rationale provided was that there is neither a clinical nor a temporal relationship between the Veteran's active duty and his sleep apnea. The examiner continued that the Veteran was released from active duty in 1973 and was not diagnosed with sleep apnea until 2007, approximately 34 years after his release from active service. Additionally, available treatment records are silent for any treatment or diagnoses of sleep apnea, or any conditions which could cause or aggravate sleep apnea, during the Veteran's service. The Board weighs the above-mentioned VA examinations against the Veteran's lay contentions that sleep apnea is due to service, to include as secondary to a service-connected disability. The Veteran, his wife, and their child are competent to report symptoms they directly observed because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, neither the Veteran nor his family are competent to offer an opinion as to the etiology of his current sleep apnea due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the Board finds the VA examinations, which opined against a link between the Veteran's currently diagnosed sleep apnea disability and his service, to include his service-connected conditions, to be of high probative value. Additionally, the Board again notes that the Veteran was not diagnosed with sleep apnea until many years after he left active-duty service. Further, no medical examiner has provided a nexus opinion which links the Veteran's condition to his active-duty service, to include as due to his service-connected disabilities. Thus, the probative evidence of record preponderates against the Veteran's claim for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with sleep apnea while in service, or within a year after service, and there is no medical opinion in the record linking his current disabilities to his active-duty service, to include as secondary to his service-connected disabilities or the medications taken for such. Therefore, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.