Citation Nr: 21069647 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-01 478 DATE: November 19, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The competent and credible evidence shows that the Veteran's obstructive sleep apnea did not onset during or was caused by military service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2021)a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from September 2004 to December 2011 including service in Iraq. He was awarded the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2021. A copy of the transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). In general, service connection requires competent evidence showing: (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, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Laypersons, such as the Veteran, are competent to report on matters observed or within his or her personal knowledge, to include the occurrence of injury, and as to the nature, onset, and continuity of symptoms experienced or observed. See 38 C.F.R. § 3.159 (a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board, however, retains the discretion to determine the credibility and probative value of all evidence of record, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant 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 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for sleep apnea The Veteran contends that he has sleep apnea due to his military service. Personnel records show that the Veteran served as an infantryman and deployed to Iraq from December 2005 to December 2006 and from June 2008 to May 2009. The Veteran has been awarded service connection for posttraumatic stress disorder (PSTD) with insomnia. A review of the Veteran's service treatment records (STRs) does not show complaint, treatment, or diagnosis for snoring or obstructed breathing in service. In a May 2009 post deployment questionnaire, the Veteran denied any trouble breathing or sleeping. In November 2009 after his second deployment, the Veteran sought treatment for insomnia, described as difficulty sleeping related to anxious thoughts. He was prescribed Ambien for sleep. No snoring or apnea was discussed. See May 2016 Medical Treatment Record Government Facility, p. 2. Treatment with medication for insomnia was reviewed and continued for the remainder of service until 2011. In the Veteran's April 2011 Separation Report of Medical History, he reported that he could not sleep without medication, but did not indicate any symptoms related to sleep apnea or difficulty breathing. See #3 February 2012 STR-Medical, p. 1. The record shows that the Veteran first sought medical treatment for snoring and apnea in February 2014. See May 2016 CAPRI, pp. 5, 16. However, in June 2014, the Veteran denied snoring or nasal congestion. The Veteran was diagnosed in October 2015 by a sleep study at a private clinic. See February 2016 Medical Treatment Record Non Government Facility. In May 2016 the Veteran submitted a claim of service connection for sleep apnea. A VA examination was provided in September 2016. The VA examiner diagnosed obstructive sleep apnea, with a date of diagnosis being February 2015 and the last sleep study being in October 2015. At the examination, the Veteran reported sleep apnea beginning in September 2009, with symptoms of being fatigued, tired, snoring, difficulty sleeping and difficulty falling asleep. The VA examiner provided a negative nexus opinion, stating that "the sleep disorder developed in service was insomnia and not a sleep apnea disorder. Treatment records were silent for daytime fatigue during service and if the claimant's apnea was prevalent, it would have been followed up shortly after in his post-service treatment however, over four years went by before OSA was diagnosed. Therefore, a negative opinion will be given." See #1 September 2016 C&P Exam. The Veteran's claim was denied by the RO in September 2016 and in October 2016 the Veteran submitted a timely notice of disagreement (NOD). A statement of the case (SOC) was provided in December 2016 and the Veteran perfected his appeal in December 2016 via VA Form 9, in which he requested a hearing. In November 2017, the Veteran was provided a VA examination for posttraumatic stress disorder (PTSD). The Veteran described sleep disturbances and restless sleep. It was found that the Veteran's insomnia was a symptom of his PTSD. Sleep apnea was noted by the examiner but was not found to be a symptom of PTSD. See November 2017 C&P Exam, p. 4. When asked if he had symptoms of sleep apnea in service, the Veteran stated 'yes' and that he reported to a doctor that he woke up at night. Id at 5. He further stated that he did not believe his sleep apnea to be due to his weight, as he weighed less in service and that he had the 'same symptoms.' Id at 7. In June 2018, a VA examiner noted a review of the claims file and the diagnosis of obstructive sleep apnea in October 2015. The examiner also noted the diagnosis and treatment for insomnia in service but the absence of any reference to apnea in service. The examiner explained the physiology of sleep apnea and cited medical studies that found an increase of the onset of sleep apnea with advancing age. The examiner also found no physiological relationship to indicate a cause or aggravation of sleep apnea by PTSD, citing two medical texts. In July 2021 a hearing was provided before the undersigned VLJ. The Veteran testified that after his second deployment he began frequently waking up at night. He was given pills for anxiety. After service, his anxiety pills were switched to sleeping pills and he was subsequently diagnosed with sleep apnea. The Veteran put forth his opinion that he had undiagnosed sleep apnea in service. See July 2021 Hearing Transcript. The claim is now before the Board. The Veteran has been diagnosed with obstructive sleep apnea during the appellate period, which meets the criteria of the first element of service connection, a current disability. Furthermore, the Veteran has testified as to his belief that his apnea began in service, and the record shows that the Veteran complained of sleep disturbances in service. This meets the criteria of the second element of service connection, an in-service event or injury. The Board thus turns to the third element of service connection, a medical nexus. While the Board acknowledges the Veteran's belief that he had sleep apnea in service, neither the Veteran, nor his representative, has been shown to possess the requisite medical training or expertise to provide a competent opinion regarding the etiology of his sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). As such, the Board turns to the medical evidence of record. The Veteran's medical record does not contain any competent supportive nexus opinions regarding the etiology of the Veteran's sleep apnea. To the contrary, the September 2016 VA examiner provided a negative nexus opinion. This opinion was reached following an in-person examination, a review of the Veteran's medical records, and consideration of his lay statements, to include the Veteran's contentions enumerated at his Board hearing. The Veteran did have difficulty sleeping after his second deployment, was diagnosed with insomnia, and was found to have PTSD that included symptoms of insomnia. However, the medical evidence is more persuasive in that sleep apnea is different from insomnia and did not manifest until after service. The Board acknowledges the Veteran's testimony that he experienced interrupted sleep in service that included the cessation of breathing. However, had that been reported to military clinicians when there were many opportunities to do so, they would not have only diagnosed insomnia and provided medication but would likely have initiated sleep studies and prescribed air pressure devices at that time. The service outpatient records from 2009 to 2011 consistently address insomnia and not apnea. As the examination and opinion have sufficiently informed the Board of both the examiner's judgment on the medical questions at issue and the essential rationale for the opinion made, the Board finds the examination to be of probative value. D'Aries v. Peake, 22 Vet. App. 97 (2008). Given that the Board has found the nexus opinion to have probative value, and as there is no competing positive nexus opinion of record, the claim of service connection for sleep apnea must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.