Citation Nr: 21068164 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-02 087 DATE: November 9, 2021 ORDER The claim for entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT OSA did not have its onset during active service and is not the result of active service. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from April 1966 to April 1968. Service personnel records show he served in the U.S. Navy Reserves from 1965 to 1966, with active duty for training from June to July 1965. The Veteran testified before the undersigned Veterans Law Judge in August 2020 by video-teleconference. A transcript of the hearing is associated with the claims folder. In January and June 2021, the case was remanded for further development. That development having been completed; the case is now again before the Board. The Veteran argues that his OSA had its onset during active service or is otherwise the result of his active service. Unfortunately, the medical evidence does not support his assertions. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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). There is no dispute that the Veteran is currently diagnosed with OSA. Private medical records and VA examinations conducted in April, July, and September 2021 reflect the Veteran is diagnosed with OSA by sleep study conducted in September 2010. In addition, the Veteran testified before the undersigned that his difficulty sleeping began during active service. He attested his former spouse told him that she observed him to snore and stop breathing at night. The Veteran attested that these symptoms have persisted from then to the present. This meets the first two elements under Shedden. There is dispute as to whether there is a causal nexus between the inservice symptoms described by the Veteran and his former spouse and the currently diagnosed OSA. The Veteran attests his symptoms have been present continuously from his discharge in 1968 to the present. In contrast, the April 2021 VA examiner opined that the Veteran's sleep apnea is not the result of active service. As rationale, the examiner explained there was no medical evidence of a sleep disorder during active service and pointed to the many years between the Veteran's discharge in 1968 and his diagnosis with OSA in 2010. However, the examiner did not discuss the Veteran's lay statements or those of his former spouse. In June 2021, the Board remanded the claim for additional VA examination and review to include consideration of the Veteran's lay statements and those of his former spouse. In July 2021, the Veteran underwent additional VA examination and was again diagnosed with OSA. The Veteran reported difficulty falling asleep during active duty, wanting to leave the military due to his duties, and worrying over the inability to do so. He further stated his former spouse told him he breathed heavy in his sleep. The VA examiner opined it was less likely than not that the diagnosed OSA was incurred during active service. As rationale, the examiner explained that the described inservice symptoms presented insufficient evidence upon which to find the Veteran had OSA during active service. The examiner explained the reported inservice sleep symptoms were not consistent with a diagnosis of sleep apnea and pointed to the 40-year gap between the Veteran's separation from active service in 1968 and his 2010 diagnosis with OSA. The VA examiner stated he had reviewed the record in addition to interviewing and examining the Veteran. Moreover, the examiner demonstrated his consideration of the lay evidence by documenting the symptoms the Veteran and his former spouse had described in previous statements and testimony: difficulty falling asleep due to excessive worrying, heavy breathing, snoring, gasping, waking for air, early morning headaches, and increased daytime fatigue. In September 2021, additional VA records review examination was conducted. After review of the record to include lay evidence, previous VA examinations, service records, and post-discharge treatment records the VA examiner concluded that there was no evidence of OSA during active service. Moreover, the examiner opined it was less likely than not the Veteran's OSA had its nexus in active service or any event during active service. As rationale, the examiner explained the Veteran's service records were negative for frequent trouble sleeping, which is a hallmark of OSA; and that such symptoms as the Veteran and his former spouse reported did not necessarily indicate the Veteran was or should have been diagnosed with OSA during active service. The examiner further explained, the Veteran's reported symptoms were, rather, generalized symptoms attributable to multiple etiologies and did not constitute a diagnosis of OSA. As such, the VA examiner opined that the medical and lay evidence did not establish a nexus between OSA and active service. Moreover, the VA examiner stated, it is highly unlikely that an individual could have endured having OSA for over 40 years, had the condition arisen during active service. Rather, the common lag in diagnosis is about two years. Thus, the VA examiner opined, it was less likely than not that the diagnosed OSA had its onset in active service. Rather, it was more likely that the onset of the OSA was in 2008, two years prior to his diagnosis in 2010. The VA examiner's review of the record is demonstrated in his detailed listing of pertinent evidence reviewed within the entire claims file including the April and July 2021 VA examinations, 2014 titration studies, service treatment records, and post-service treatment records. In addition, the VA examiner's consideration of the lay evidence submitted by the Veteran and his former spouse is notable in the examiner's discussion of the symptoms reported: trouble sleeping, trouble breathing, snoring, insomnia, trouble falling asleep, trouble staying asleep, easy awakening, choking, gasping, daytime somnolence, and fatigue, fitful sleep, and movements during sleep. In sum the medical evidence, consisting of three VA examination/medical opinions from April, July and September 2021, in aggregate, establishes that the claimed OSA did not have its onset during active service nor is it the result of active service or any incident therein. The Board finds these medical findings and opinions to have probative value for the following reasons. First, in aggregate they are based on review of the record, interview with and examination of the Veteran. Second, the examinations and opinions were provided by VA examiners who have the credentials to do so. Specifically, a certified physician's assistant conducted the April 2021 examination. A nurse practitioner conducted the July 2021 examination. Crucially, a medical doctor conducted the September 2021 records review analysis. Third, the July and September 2021 examinations and opinions contained full and complete rationale based on the Veteran's lay evidence and that of his former spouse, as well as the medical evidence. Further, the Board finds that the negative inference noted in Maxson, above, is applicable given the September 2021 VA examiner's observation that it would be difficult for an individual to have endured OSA for so many years prior to diagnosis and treatment. There are no other medical findings, medical statements or opinions tending to show the claimed OSA had its onset during active service or that OSA is the result of active service or any incident therein. The Board has considered the lay evidence provided by the Veteran and his former spouse. Although the Veteran and his former spouse are competent to provide their own observations of the Veteran's sleeping characteristics and his daytime tiredness, as well as their other observations, they have not provided nor does the record show that they are medical professionals with the credentials to provide a causal link between inservice symptoms and current diagnoses, or to provide an etiology for the currently diagnosed OSA. See Layno, supra; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Accordingly, service connection for OSA is not warranted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.