Citation Nr: 21068543 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-33 274 DATE: November 10, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's OSA began during active service, or it is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's OSA had its onset during any period of active duty for training (ACDUTRA); resulted from a disease during any period of ACDUTRA; or is a result of an injury incurred or aggravated in during any period of ACDUTRA or inactive duty training (INACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1978 to October 1982; the Veteran, in addition, has periods of ACDUTRA and INACDUTRA. In December 2003, the Veteran was discharged from the Army National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. A March 2019 Board decision, among other things, denied service connection for OSA. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion) and, in a January 2020 Court Order, the Court granted the Joint Motion, partially vacating the Board's March 2019 decision and remanding the matter for compliance with the Joint Motion. A September 2020 Board decision, among other things, again denied service connection for OSA. The Veteran appealed to the Court. The parties submitted a Joint Motion, and, in a July 2021 Court Order, the Court granted the Joint Motion, partially vacating the Board's September 2020 decision and remanding the matter for compliance with the Joint Motion. Entitlement to service connection for OSA. As a preliminary matter, the Board notes that the parties to the July 2021 Joint Motion found that the November 2018 Board hearing did not meet the standards set forth in Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010). See also 38 C.F.R. § 3.103(c)(2). Specifically, the parties noted that although the hearing transcript reveals that the VLJ, prior to going on the record, discussed the evidence needed to establish service connection; the hearing transcript does not show the substance of the discussion, and, therefore, unclear whether the Veteran "had actual knowledge of the evidence needed to substantiate his claim." See Joint Motion for Partial Remand (July 2021). While the November 2018 hearing transcript may be absent of such information, the Board finds that such omission was not prejudicial to the Veteran. The Board acknowledges that the Bryant Court found that there was prejudice with respect to one of the claims at issue, even though the veteran had been provided pre-adjudication notice of how to substantiate his claims for service connection. See 23 Vet. App. at 496. The Court, however, found that prejudice must be assessed in each case and that the veteran in Bryant was not prejudiced by the hearing officer's failure to suggest the submission of certain evidence pertaining to three other claims. Id. In this case, the Veteran was not prejudiced by any failure to notify him of the elements of service connection and the type of evidence necessary to substantiate the claim. First, the Board observes that the hearing transcript explicitly provides affirmation from the Veteran that he was provided with a discussion on the evidence needed to establish service connection. See Hearing Transcript at 17 (November 2018). Second, the record contains several written notice letters advising the Veteran of how to substantiate a claim for service connection. For instance, the January 2014 rating decision and August 2015 statement of the case provide the Veteran with actual knowledge of evidence needed to substantiate his claim for service connection. Third, the Board observes that the Veteran, in initializing his claim, submitted VA Form 21-526EZ, which, among other things, contains information on the evidence needed to substantiate a claim for service connection. Fourth, at the Board hearing, the VLJ posed several questions in order to elicit testimony regarding, among other things, past and current symptoms, and treatment for the OSA. See Hearing Transcript 15-17 (November 2018). Lastly, the Board is aware of the Court's often stated interest in conservation of judicial resources and in avoiding piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). In this case, as stated above, the claim was initially denied in a March 2019 Board decision. The Board decision, issued after the Board hearing, provides the Veteran with actual knowledge of the evidence needed to establish service connection. The subsequent Court-adopted January 2020 Joint Motion did not identify any defect in the Board's March 2019 decision regarding the discussion of, or compliance with, the provisions of 38 C.F.R. § 3.103(c)(2). Rather, the reason for remand was because of the Board's failure to discuss whether a VA medical opinion about the etiology of the Veteran's OSA was warranted. See Joint Motion for Partial Remand (January 2020). Accordingly, given the above, the Board finds no prejudice to the Veteran in any Bryant notice deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that whether prejudice exists is to be made on a case-by-case basis). Under these circumstances, the Board will proceed with adjudication of the claim on appeal on the merits. The Veteran, and his representative, contends that service connection for OSA is warranted. At the Board hearing, the Veteran testified that he did not have any medical condition for sleeping while in service. See Hearing Transcript at 15 (November 2018). In elaborating, the Veteran testified that he was "in perfect health" while in service, and was diagnosed with OSA six months after service, in 2005. Id. 15-16. In June 2015, the Veteran testified before a decision review officer and stated that he was diagnosed with sleep apnea "probably 15 months ago." See Hearing Testimony at 13 (June 2015). Initially, the Board observes that the Veteran seems to be conflating his active service with his nonactive service in the Army National Guard. In this regard, the Veteran statements are very generalized and vague to the point that the Board is unable to ascertain if his OSA stems from active service or his nonactive service in the Army National Guard. The representative, likewise, has not provided the Board with any specific period of service. Nonetheless, the Board will consider the Veteran's active service and nonactive service in deciding his claim for service connection. The Board concludes that, while the Veteran has a current diagnosis of OSA, the preponderance of the evidence weighs against finding that OSA began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board also finds that the preponderance of the evidence is against finding that the Veteran's OSA had its onset during any period of ACDUTRA; resulted from a disease during any period of ACDUTRA; or is a result of an injury incurred or aggravated in during any period of ACDUTRA or INACDUTRA. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton, 557 F.3d at 1366; 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). As an initial matter, the Board notes that OSA is a disorder that is characterized by obstructive apneas, hypopneas, and/or respiratory effort related arousals caused by repetitive complete or partial collapse of the upper airway during sleep . . . . Well-defined risk factors for OSA include older age, male gender, obesity, and craniofacial and upper airway abnormalities. Potential risk factors include smoking, family history of snoring or OSA, and nasal congestion. Lewis R Kline, MD, Clinical presentation and diagnosis of obstructive sleep apnea in adults, UPTODATE, https://www.uptodate.com/contents/clinical-presentation-and-diagnosis-of-obstructive-sleep-apnea-in-adults?search=obstructive%20sleep%20apnea&source=search_result&selectedTitle=1~150&usage_type=default&display_rank=1#H14 (last updated Sep 28, 2020). Service treatment records (STRs) do not reflect complaints, treatment, symptoms or signs for OSA. In this regard, the Veteran's STRs show that he sought medical treatment for various complaints, such as shoulder pain, upset stomach, and chest colds, during service; his STRs, however, do not show symptoms or a manifestation of a sleep-related problem or disorder during service. For instance, an August 1981 report of medical history reflects that the Veteran did not report complaints, treatment, or diagnoses related to a sleep disorder, to include OSA. The report of medical history, overall, reflects that the Veteran was healthy and without any minor or major medical complication. Next, although the record does not reflect a separation examination, Army National Guard entrance report of medical examination, dated in January 1989, is negative for complaints, treatment, or diagnosis for a sleep disorder. The Veteran, after examination, was found to be qualified for service in the Army National Guard. Army National Guard examination report, dated in September 1996, reveals that the Veteran was found to have clinically normal body systems; additionally, after examination, the Veteran was found to be qualified for retention. A corresponding report of medical history, also, does not reveal signs or symptoms of a sleep disorder. In this regard, in the corresponding report of medical history, the Veteran denied having, or ever having, frequent trouble sleeping, and he described his health as good. Additionally, regarding question 20 of the report of medical history, providing, "Have you ever had any illness or injury other than those already noted," shows that the Veteran did not report symptoms or signs, treatment, or diagnoses related to a sleep disorder, to include OSA. Similarly, Army National Guard examination report, dated in January 2001, reflects no complaints, treatment, or diagnoses related to a sleep disorder; after examination, he was found qualified for retention. The corresponding report of medical history, likewise, reflects that the Veteran denied having, or ever having, frequent trouble sleeping. Post-service medical records reflect that in March 2009, the Veteran reported his sleep as "off and on throughout the day and night." Sleep hygiene was discussed, and he was encouraged to establish a routine time to go to bed; his ETOH (a term that is used to refer to ethanol alcohol) was addressed; and he was advised not to take naps during the day to assist with his sleep. In November 2012, the Veteran reported frequently snoring during sleep; he was recommended to discuss the snoring with his primary care provider to rule out OSA. In September 2013, the Veteran underwent an evaluation for sleep disturbances; the impression was suspected OSA/insomnia. Then, in October 2013, he was diagnosed with OSA. Treatment records, dated afterwards, continue to reflect complaints and treatment related to his OSA. The Board acknowledges the lay statements of record. While lay persons are competent to describe observable symptomology (e.g., snoring), the Veteran is not competent to opine on the etiology of such symptoms given that his OSA was not shown as incurring during service and because he lacks the requisite medical expertise to formulate a medical opinion on whether his OSA had its onset in service or is related to an in-service injury or disease. The Board observes that testing, such as a polysomnography or home sleep apnea test, is generally required to detect and diagnose OSA. This is a complex medical determination beyond the range of experience or understanding of the lay person that cannot be answered based on observation or analysis of the lay person. Indeed, as noted above, the Veteran's OSA is an intricate and complex matter that requires specialized medical education and knowledge, separate from the training, education, or knowledge of a lay person, regarding the unseen and complex processes of the development of respiratory disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, as the Veteran is not competent to provide an opinion, the Board finds his opinion of no probative value in this matter. Nevertheless, even if the Board was to find the Veteran's lay statements of record as acceptable competent evidence sufficient to establish service connection for OSA, the Board finds the lay reports less than credible as they are inconsistent with contemporaneous evidence. It is noted that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012), for the proposition that "the absence of evidence cannot be substantive negative evidence without 'a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'"). That foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. Id.; Buczynski, 24 Vet. App. at 224 (noting that under Fed. R. Evid. 803(7), "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide "useful guidance," and quoting federal case law to the effect that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur" (internal citation omitted)). The Board, therefore, may infer from silence in the STRs that a claimed disease, injury or event did not occur during active service if it finds that the STRs are complete "in relevant part," and that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred." Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). Such a finding constitutes "contradictory" evidence weighing against the credibility of a claimant's testimony. Id. In making this determination, the Board must consider whether it is competent to find that a claimed medical issue would ordinarily have been recorded without supporting medical evidence. Id. at 434; Cf. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). The Veteran's STRs, in this instance, are complete "in relevant part" and, in conjunction with subsequent post-service treatment records and other contemporaneous evidence, contradict the lay statements. Further, the Veteran's claimed medical issue, OSA, would ordinarily have been recorded in the STRs as it is a severe medical condition that could have impacted his ability to deploy with his unit. The Veteran's STRs, to include Army National Guard STRs, nevertheless, reflect no complaints, treatment, or diagnoses for OSA or associated symptoms. Indeed, as mentioned above, the Veteran's January 2001 Army National Guard examination report reflects no current or past complaints, treatment, or diagnoses related to a sleep disorder. The corresponding report of history also reflects that the Veteran denied having, or ever having, frequent trouble sleeping. Additionally, the summary of defects and diagnoses section of the examination report shows that the examining physician found none. After examination, the examining physician concluded that the Veteran was qualified for service retention. Thus, the STRs are complete insofar as they pertain to the Veteran's period of active service and nonactive service, and include the Veteran's medical treatment records. With regard to the Veteran's period of service in the Army National Guard, the Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes "veteran" status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and a post-service disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled "during" the period of ACDUTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before "veteran" status is granted. 38 U.S.C. § 101(24). Simply reporting that a disability is due to stress and strain as related to military duties, during a period of ACDUTRA or INACDUTRA, is not sufficient to establish entitlement to service connection for such a period. It must be established that the disability had its onset during the period of ACDUTRA or INACDUTRA in question, and that it was due to an injury or disease incurred in the line of duty. Here, the onset of OSA does not appear to have occurred during a period of active service, ACDUTRA, or INACDUTRA, as discussed above. In this regard, the competent, credible evidence, collectively, demonstrates that the Veteran's OSA had its onset, or is related to periods, outside of active duty, ACDUTRA, or INACDUTRA. For instance, treatment records show that the Veteran started to complain of signs or symptoms related to OSA in March 2009. Further, at the Board hearing, the Veteran testified that he was diagnosed with OSA six months after his service in the Army National Guard, in 2005; this report of onset is years after his separation from the Army National Guard and decades after active service. In consideration of the above and the Veteran's treatment records, the Board finds the lay reports less than credible. See Buczynski, 24 Vet. App. at 224 (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana, 24 Vet. App. at 438 (stating that VA may use silence in the STRs as evidence contradictory to a veteran's assertions if the STRs appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). Given the above, the Board finds that the preponderance of the evidence weighs against finding that OSA began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). In making this determination, the Board takes notice that the weight of the evidence demonstrates no onset of OSA during active service, or an in-service injury or disease to which OSA could be related. The Board assigns greater probative value to the objective medical evidence, to include the Veteran's STRs and post-service medical records, reflecting no complaints, treatment, or diagnosis for OSA and the decades intervening active service and the first documented complaint of OSA. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board also finds that the preponderance of the evidence is against finding that the Veteran's OSA had its onset during any period of ACDUTRA; resulted from a disease during any period of ACDUTRA; or is a result of an injury incurred or aggravated in during any period of ACDUTRA or INACDUTRA. In making this determination, the Board observes that the Veteran, and his representative, has not identified any specific period of ACDUTRA and/or INACDUTRA which caused his OSA. See Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting the claimant's general evidentiary burden to establish his claim); see also Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009) (interpreting section 5107 and stating that a claimant has the burden of presenting evidence supporting his or her claim, albeit with the statutorily mandated assistance of VA). Weighing the evidence of record, the Board finds that the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). Accordingly, the claim is denied. Because the evidence demonstrates no in-service injury or disease element needed to establish service connection, the Board finds that no VA medical opinion is needed in this case. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As explained above, the weight of the evidence demonstrates no in-service disease, injury, or event. Moreover, the weight of the evidence also demonstrates no sign or symptom of OSA until many years after service. There is no reasonable possibility that a medical opinion would help substantiate the appeal because there is no in-service injury or disease to which an opinion could relate the diagnosed OSA. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Any opinion purporting to relate the currently diagnosed OSA to service would have to base such opinion on a factually inaccurate assumption of in-service injury, disease, or event; such factually inaccurate assumption would render the purported opinion of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). As such, the standards of McLendon were not met, and VA's duty to assist does not include providing a VA examination or obtaining medical opinion as the Veteran has provided vague statements and the lack of information provided related to his claim makes it a fishing expedition. Therefore, the Board finds that the duty to provide an examination or medical opinion has not been triggered. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (explaining that something more than a veteran's conclusory, generalized statement is needed to trigger VA's duty to assist by providing a medical nexus examination). Lastly, the Board observes the Veteran's argument of denial of due process. In this regard, the Veteran argues that "the Board erred when it relied on a lack of medical records to support its finding that he was not credible and denied him fair process when it failed to notify him that a prior favorable credibility finding was being changed to an unfavorable credibility finding." See Joint Motion for Partial Remand (July 2021). The Veteran however fails to direct the Board to the "prior favorable credibility finding," and a review of the October 2018 hearing transcript and prior Board decisions, on this issue, are absent for any favorable creditability finding. Nevertheless, to the extent that the Board's credibility analysis in this decision is a departure from any prior favorable creditability finding, the Board finds that the Veteran was on notice of the potential for adverse credibility determinations and was given opportunity to submit evidence and argument to substantiate his claim. Here, the Board notes that the September 2020 Board decision found the Veteran's lay reports that his OSA had its onset in service or is related to an in-service injury or disease lacked credibility. Further, in July 2021, the Board provided the Veteran, and his representative, an opportunity to submit additional evidence or argument. Thus, the Veteran was on notice of the potential for adverse credibility determinations and, as such, the Board finds that the due process concerns discussed in Smith v. Wilkie, 32 Vet. App. 332 (2020), have been complied with in the present circumstance, as the Veteran was provided adequate notice of potential adverse findings and an opportunity to be heard at every step of the administrative process. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.