Citation Nr: 21065853 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-01 802 DATE: October 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's sleep apnea manifested during service or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to January 1978 and from March 1980 to November 1995. In April 2018, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript is on record. In June 2018, the Board denied the Veteran's claim for service connection for a low back disability and remanded the Veteran's sleep apnea claim for an examiner to consider the Veteran and his wife's reports of difficulty sleeping beginning in the early 1980s. The United States Court of Appeals for Veterans Claims (Court) affirmed the Board's denial of service connection for a low back disability. In May 2021, the Board remanded the Veteran's claim for sleep apnea finding the Veteran's May 2019 VA sleep apnea examination was unclear and possibly based on inaccurate facts. An addendum opinion was provided in July 2021. Entitlement to service connection for obstructive sleep apnea is denied. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be granted for any disease diagnosed after discharge from active duty 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 determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran was diagnosed with obstructive sleep apnea via a sleep study conducted in July 2006. The question is thus whether the Veteran's currently diagnosed sleep apnea is related to his military service. The Board finds it is not. The Veteran contends his sleep apnea developed in the early 1980s. He and his wife testified at his hearing and submitted lay statements regarding sleep apnea-like symptoms such a snoring, teeth grinding, and not breathing while sleeping since the early 1980s. Service treatments records show the Veteran complained of insomnia for nine days in February 1982. The Veteran was provided a VA examination on the etiology of his sleep apnea in July 2021, following the Board finding his May 2019 VA examination inadequate. The examiner was asked to address the sleep apnea-like symptoms the Veteran has reported occurring since the early 1980s, including the in-service diagnosis of insomnia. The examiner opined the Veteran's current sleep apnea is less likely than not related to service. The examiner rationalized that insomnia is discernible from sleep apnea; and that while symptoms such as gasping, chocking, movements during sleep, and perceived cessation of respirations and snoring do substantiate a diagnosis of sleep apnea, the Veteran's particular sleep apnea was not diagnosed until 2006, 11 years after his separation from service. The examiner added that if the Veteran's sleep apnea had persisted since service, the Veteran would have scored higher in one of the qualifying criteria for a sleep apnea diagnosis, and that bruxism (teeth grinding) is not a component of sleep apnea. The examiner acknowledged the Veteran's lay reports of symptoms since service; however, based on the foregoing rationale, concluded they were against the medical records. Aside from the notation discussed above, the Veteran's service treatment records are otherwise silent for complaints, treatment, and diagnosis of sleep problems, including sleep apnea but for the note of insomnia in February 1982. The Veteran specifically denied sleep problems at a periodic examination for overseas screening in December 1991 and at his separation examination in August 1995. Moreover, the Veteran noted the presence of other disabilities or ailments, such as pain or pressure in his chest and heart trouble. The Board thus understands his twice denial of sleeping problems to represent not the absence of, but affirmative evidence that the conditions did not exist in December 1991 or at his separation from service in 1995. Private treatment records from a primary care physician show the Veteran first complained of insomnia after service in June 2006, when he reported difficulty sleeping every night for months. Notably, the Veteran did not report his sleeping problems dated back to service, but months prior to his June 2006 appointment. Moreover, when the Veteran first filed for service connection in June 2008 for disabilities related to service, he did not include a claim for sleep apnea. The Veteran filed for service connection for sleep apnea in May 2011. It is reasonable to assume since the Veteran had been diagnosed with sleep apnea two years prior to filing for service connection, that if he had suffered from its symptoms since service and genuinely believed the condition to be related to service, he would have included a claim for the condition in his first filing for service connection. Instead, the Veteran did not begin reporting his sleep apnea as possibly related to service until filing for service connection for such. In this regard, the Board notes that the Court has drawn a credibility distinction between statements made for the purpose of receiving treatment and those made for the purposes of seeking compensation. See Harvey v. Brown, 6 Vet. App. 390, 39394 (1994). The Board has done the same here, applying more probative value and credibility to the Veteran's statements made for the purpose of receiving treatment in June 2006 than to those made towards receiving compensation. Accordingly, the Board finds the Veteran's reports of sleep apnea-like symptoms since service to be less than credible. Finally, the Board is cognizant of the Veteran reporting in his VA Form 9 that his sleep apnea may have developed after exposure to air pollution while stationed in Italy. However, the Veteran has not provided any evidentiary support for this theory; for example, by specifying what kind of air pollution, or by providing information on Italy's air quality while he was stationed there. Moreover, the Veteran did not report this as a contributing factor at his VA examinations addressing the etiology of his sleep apnea. The Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). That obligation, however, "does not require the Board to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Robinson, 21 Vet. App. at 553. "Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361; see Shields v. Brown, 8 Vet. App. 346, 34950 (1995). In this vein, and considering the Board has herein found reports of sleep apnea symptoms since service to be less than credible, addressing this theory is unwarranted. While the Veteran and his wife believe his sleep apnea is related to his service, they are not been shown to be competent to provide an opinion on the etiology of his sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The issue is medically complex. Therefore, it is outside the competence of the Veteran and his wife because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examination, which was rendered by a medical professional based on review of the records and reliance on accepted medical principles. In sum, the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea. As such, the benefit of the doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.