Citation Nr: 21069505 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-58 006 DATE: November 18, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REFERRED The Veteran testified at his July 2021 Board hearing that his service-connected left and right hip conditions have worsened in severity since his last VA examinations, to include a reported upcoming hip replacement for his left hip. A rating decision was issued in December 2016 denying the Veteran's claim for an increased rating for his left hip disability. The Veteran filed a timely notice of disagreement (NOD) in February 2017. A supplemental statement of the case (SOC) was issued in August 2017 continuing denial of his increased rating claim for a left hip disability. The Veteran did not appeal the SOC determination as to his left hip claim. See VA Form 9, October 2017 (he elected only to appeal the denial of his sleep apnea claim specifically). Likewise, for any claim as to his right hip disability, a rating decision was issued in September 2017 granting a 100 percent temporary total disability rating and a 30 percent disability rating, thereafter from March 1, 2013. The Veteran has not submitted any disagreement with this rating decision. As such, neither issue is on appeal before the Board at this time. Given the fact the Veteran reported an upcoming left hip replacement that has not yet been scheduled and also that he recently reported worsening symptoms, the Board finds a referral to the Regional Office (RO) is appropriate on these matters. In this regard, the Board notes that as of March 24, 2015, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151. The Veteran's request, as outlined at his Board hearing, is referred to the RO for any appropriate action, if needed. FINDING OF FACT The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1977 to December 1981, and from July 1982 to January 31, 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. In this regard, the Board must apologize to the Veteran for the delays in the full adjudication of his claim. 1. Entitlement to service connection for sleep apnea The Veteran claims that he is entitled to service connection for sleep apnea because, in substance, it is due to a nose injury in service nearly 40 years ago. The Veteran (and his former spouse) reported symptoms since service, to include loud snoring, fatigue and cessation of breathing while sleeping. The Veteran also reported he did not know his symptoms were indicative of a sleep problem during service, nor for many years thereafter. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002). Important in this case, as the Veteran has not been diagnosed with one of the enumerated disorders listed under 38 C.F.R. § 3.309(a), application of 38 C.F.R. § 3.303(b) is not warranted. Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Turning to the evidence, the record shows the Veteran being diagnosed with obstructive sleep apnea in 2015, nearly 20 years after retiring from service, in 1998. See August 2017 VA Examination. The Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea while in service. Significantly, physical examinations, chronological care notes and contemporaneous reports of medical history while in service fail to document any complaints, treatment, diagnosis, or observed symptoms related to sleep apnea or any other chronic sleep condition, even though he did mention other complaints during service. See e.g., Report of Medical History, June 1982 (marked no to "frequent trouble sleeping" and "Ear, nose or throat trouble" and "shortness of breath"), August 1985 (same), and January 1995 (marked no to "frequent trouble sleeping" and "Ear, nose or throat trouble"; "shortness of breath" is marked yes but explained as a reaction to medication in the comments.). Nonetheless, the Board acknowledges the Veteran's competent and credible statements that he sustained a nose injury when he was hit in the face with a basketball during active service. There is no reason to dispute that the Veteran was, in fact, hit in the face with a basketball in 1978. However, the only evidence of a broken nose is the Veteran's lay testimony. Importantly, the Veteran did not report the injury in service and there is no competent evidence as to a diagnosis of a fracture (or deviated septum, as alleged at hearing) to the nose in service. In this regard, while the Veteran is competent to report observable symptomatology (or an accident), he is not competent diagnose a fractured nose, or a deviated septum, as this requires special testing, to include diagnostic studies, and specialist knowledge to make such a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). While a service connection claim for a nasal disability in service has not been raised, the Board believes that it must address, in part, this issue. Clearly, the Veteran recognized he was hit in the nose during service. Notably, however, the Veteran's many physical examinations in service failed to indicate a nose disability, marking his nose as normal. See e.g., Report of Medical Examination, November 1981, June 1982, August 1985, December 1990, January 1996. Here, in this case, the Board declines to draw inferences that are tenuous and suspect. The fact that the Veteran was hit in the face during service does not indicate a nose disability for compensation purposes that exists at this time, and more importantly, does not indicate his current sleep issues diagnosed nearly 40 years after-the-fact were caused by a nose injury in service. Rather, the Board finds the circumstantial evidence against this claim is very strong, providing some of the basis to find that the evidence is, overall, against the claim. In the Veteran's case, he was hit in the nose in service and was considered to have a normal nose both upon examination and separation from active service and for many, many years thereafter. To draw an inference between the Veteran getting hit in his nose and issues of sleeping in service, or to a diagnosis of sleep apnea nearly 40 years later, is one the Board cannot make. The Board has reached this conclusion because the inferences against this claim are clear. For example, the fact the Veteran never indicated there was a nose or sleeping disability until 2015 provides additional evidence against his claim, the fact that post-service treatment records do not indicate a nose or sleeping problem provides inferences against this claim, that the Veteran never filed a claim for a nose or sleeping problem provides inferences against this claim, the fact that this problem was reported decades after service provides inferences against this claim, and the fact that we are dealing with events that occurred nearly 40 years ago provides much support that this case is not in equipoise and that the Veteran's alleged injury in service did not cause or aggravate sleep apnea or his reported sleep problems. The post-service evidence does not reflect symptoms related to sleep apnea until approximately 2015, when he first received a diagnosis of obstructive sleep apneanearly 20 years after separation from serviceand nearly 40 years after being hit in the nose in service. Such a large gap in treatment and actual documentation of symptoms does not demonstrate continuity of symptoms since active service. The Veteran is speculating. The Board has further considered the statements from the Veteran, particularly that he experienced symptoms such as snoring since active duty, stopping breathing while snoring and fatigue. However, while the Veteran is competent to report observable symptomatology, he is not competent diagnose a disorder such as sleep apnea, as this requires special testing, to include sleep studies, and specialist knowledge to make such a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Moreover, the Board determines that the Veteran's statements regarding continued symptomatology since active service, while competent, are nonetheless not credibly probative in establishing his claim for sleep apnea because there is not a complaint, diagnosis or treatment for sleep problems until 2015, many years after leaving service, nearly 40 years after the nose injury in service. The large gap in treatment for his sleep apnea and service weighs against the Veteran's statements that he has had symptoms of sleep apnea since active service. In fact, the Veteran's service records and post-service treatment records contradict his assertions that his symptoms have persisted since service. Specifically, his history of medical complaints in service are well documented in his periodic physical examinations throughout his career and they do not reflect any complaints or symptoms related to sleep problems in any way, despite noting many other issues. The Veteran's recollection of events are at fault. Additionally, the Board notes that the Veteran filed a claim for VA benefits in 1998, for other medical issues he was having, nearly 20 years years prior to filing his current claim for sleep apnea. In this case, it demonstrates further that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to any type of sleep disorder, nose injury, or breathing problem while sleeping that he now claims to have had for nearly 40 years. The Veteran's own history provides evidence against the claim because it is inconsistent with his report of symptoms persisting since service, caused by the nose injury in 1978. The Veteran also contends that he did not learn about sleep apnea until years after his time in service. The Board finds that these statements do not provide an explanation for his delay in reporting a sleep condition (of any kind), either in service, especially a symptom such as the cessation of breath while sleeping, nor in his delay in pursuing a claim for sleep problem of any kind, until nearly 20 years after retiring from service. While the Veteran may not have known of "sleep apnea" when he filed his claim for VA benefits in 1998, the Veteran still did not seek a claim for any issue related to sleeping, including daytime somnolence, insomnia, or even a nose problem. Even if he was unaware of what is considered "sleep apnea", the Veteran reported that he had trouble sleeping in service and would stop breathing at night and felt tired during the day. Here, if the Veteran continued to experience these symptoms (to any degree of severity) since his time in service, he could have reported some type of sleep and/or nose disability. Put simply, the fact that the Veteran specifically denied any problems with sleeping or breathing abnormally throughout his 20 years in service and then for an additional 17 years after service also provides evidence against this claim. The record in this case provides highly probative evidence against this claim. As such, the Board does not find the Veteran's statements regarding continuity of symptoms since service to be credible in this matter. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of evidence, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, and lay statements made during treatment). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of his current sleep apnea falls outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The Board finds that the weight of the competent evidence does not show the Veteran's claimed sleep apnea is related to active-duty service, nor is it due to a nose injury from 1978. In this case, it is not simply the absence of evidence, but the evidence itself that is against this claim. In August 2017, the Veteran was afforded a VA examination which included an in-person examination. After a physical evaluation of the Veteran and review of the medical record and other lay evidence of record, the examiner opined that the Veteran's sleep apnea is less likely than not related to active-duty service. In support, the examiner cited records showing that the Veteran's service treatment records were negative for any complaints or diagnosis or treatment of sleep issues, the Veteran's weight showed weight gain since service and that his sleep apnea was not diagnosed until many years after separation from active duty. Moreover, the examiner noted that weight gain and obesity are the top risk factors for sleep apnea. The Board finds the August 2017 VA opinion the most probative evidence of record because it is provided after a review of the record on appeal, to include the Veteran's own narrative of an injury in service, as well as outside medical opinions and an examination of the Veteran as well as because it is supported by the evidence found in the record including the Veteran's lay statements and controlling medical principles. The Board acknowledges the private medical opinions submitted by the Veteran. See March 2017 Private Medical Opinion from Dr. T.M.; see also August 2016 Private Medical Opinion from Physician Assistant (P.A.) K.H. In this regard, case law and rules of jurisprudence dictate that the Board is free to discount the credibility of a physician's statement, which we do in this case, so long as the Board provides an adequate report of reasons or bases for that determination. See Sanden v. Derwinski, 2 Vet. App. 97, 100-01 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Board find the medical opinions submitted by the Veteran to be deeply flawed because they make no mention or attempt to review the evidence of record, relying solely on the Veteran's lay statements to make their opinions, and did not provide an adequate rationale for their opinions. In Dr. T.M.'s opinion, for example, the Veteran's sleep apnea is opined to be "much more likely than not related to service" simply because the Veteran's reports of snoring and fatigue 20 years later are, in fact, symptoms of the condition known as sleep apnea. The Board finds this opinion lacks probative value because it is not supported by any clinical data, especially given this record in particular. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). At this point, without reviewing the Veteran's medical history to inform the opinion in any way and relying solely on the Veteran's lay statements of symptoms of sleep apnea during service, without regard as to their frequency, duration and/or severity, Dr. T.M.'s opinion is progressing from an effort to provide objective medical opinion evidence to possible advocacy. In arriving at all of the above conclusions, the Board has certainly considered the assertions made by the Veteran in this case, as well as his physicians, relating the reported symptoms of his sleep apnea to his active service. However, almost all of the information in this case comes from the Veteran himself. In this regard, the Veteran has also provided evidence against the claim by his statements on his multiple physical examinations for many years while in service, as well as after service treatment records, which remain silent for any complaint of a sleep problem until nearly 20 years after service. Accordingly, the preponderance of the Veteran's own statements provides highly probative evidence against his claim. The Board finds there are too many inferences in this case that provide evidence against the claim. The Veteran's statement regarding the key issue of continuity of symptoms is not credible in regard to having symptoms of sleep apnea since service. In this case, the only evidence of record relating the Veteran's condition to service is the Veteran's own conclusory statements which have been found by the Board, the trier of facts in the case, to be too general in nature and not specific enough to find he had a sleep apnea diagnosis at any point prior to (roughly) 2015. Put simply, the facts of this case and the best medical evidence of record is against this claim, either of which provide a basis to deny the claim. Consequently, the Board finds that the weight of the evidence is against a finding of service connection for sleep apnea. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. Therefore, entitlement to service connection for sleep apnea is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.