Citation Nr: 21069941 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 10-09 240 DATE: November 22, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's sleep apnea began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met.38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to July 1977 and from November 1977 to October 1983. He also had service in the National Guard from November 1983 to November 1986. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2012; a transcript of the hearing is of record. This matter has a long procedural history, including multiple Board remands, multiple Board Decisions, and two Memorandum Decisions of the United States Court of Appeals for Veterans Claims (CAVC). In the most recent April 2021 Memorandum Decision, the Court found that the Board's September 2019 Decision denying service connection for sleep apnea failed to address potentially favorable evidence. As such, the issue was returned to the Board for adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.38U.S.C. §§1110, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi,381 F.3d 1163, 1166 -67(Fed. Cir. 2004). Sleep Apnea The issue presented before the Board in this matter is not whether the Veteran has a current disability, but whether that disability is related to his active duty service. It is well established that the Veteran has had a diagnosis of sleep apnea since September 2007. However, the preponderance of the evidence is against finding that the Veteran's diagnosed sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. At the outset, the Board has conceded that the Veteran snored while on active duty. See Lay Statements of the Veteran's wife and fellow service member dated October 2013 and January 2009, respectively, and the Veteran's 2012 hearing testimony. Additionally, there is no question regarding the fact that despite his conceded snoring in-service, the Veteran's STRs are without diagnosis of or treatment for sleep apnea and that the Veteran denied trouble sleeping on his June 1977 and July 1983 separation examinations. Also, as stated above, the Veteran was not diagnosed with sleep apnea within a year of his active duty or National Guard service. The evidence of record contains multiple VA examinations regarding the etiology of the Veteran's sleep apnea. Examinations in February 2018 and May 2019 stated that snoring alone was not a diagnostic of sleep apnea. The February 2018 VA examination noted that diagnosis of sleep apnea required a showing of episodes of apnea and that no such episodes were documented in the Veteran's file, including not only his STRs but also the lay statements which established that the Veteran snored in-service. The examiner also stated that the Veteran's weight gain approximately 89 pounds since his separation from service established that the Veteran was morbidly obese, a symptom associated with increased risk of sleep apnea. Ultimately, the examiner found that it was less likely than not that the Veteran's sleep apnea was incurred in service. A May 2019 VA examination also considered the issue of the etiology of the Veteran's sleep apnea, taking into consideration his snoring while in-service. The examiner reported that medical literature states that a diagnosis of sleep apnea requires five or more predominately obstructive respiratory events per hour of sleep. The examiner went on to state that snoring, regardless of the volume or frequency, is not a predominantly obstructive respiratory event and no other obstructive respiratory events can be found in the record. The examiner found that based on this finding that it is less likely than not that the Veteran's sleep apnea is related to his military service. Thus, the preponderance of the evidence establishes that even though the Veteran snored in service, his snoring alone is not a diagnostic of sleep apnea. There is no evidence of record, including lay statements or other medical evidence, which established that the Veteran had any obstructive respiratory events (aka, apnea) in service or within a year of his discharge from service. Indeed, in the Veteran's hearing in 2012 he testified that he snored in-service and was told he snored in service. He did not identify any apnea events in service, nor did he state that the people who heard him snore also identified any apnea symptoms in-service. Furthermore, in his September 2007 sleep study, which diagnosed his sleep apnea, the Veteran did not relate his apnea symptoms as having originated in-service or within proximity to service. The Board acknowledges that the Veteran had reports of fatigue in service; however, these reported symptoms were found by a VA examiner to have multiple causes such as treatment for upper respiratory infections and sore throats. Both VA examiners also noted that the Veteran's post-service weight gain was the most significant determinant of sleep apnea. The Court's Memorandum Decision vacated the Board's 2019 Decision for the lack of address of a 2014 VA examination. A prior Court Memorandum Decision determined that if the Veteran was found to snore in service, the 2014 VA examination opinion could be favorable to the Veteran. First, the Board does not afford the 2014 VA examination any probative weight. The examination was founded on the premise that the Veteran did not snore in service, a fact which has now been conceded and established as having occurred. As the Court itself noted, a medical opinion based on an inaccurate factual premise has no probative value. See December 2015 Memorandum Decision, citing Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Second, the Board disagrees that an assumption of snoring in service would render the 2014 VA opinion favorable. The 2014 examiner discussed the progression of sleep apnea in correlation to the increase in body mass. She specifically stated that obesity is the best documented risk factor for sleep apnea and also stated that the prevalence of sleep apnea increased with age. She then stated that the prevalence of sleep apnea progressively increases as the body mass increases, noting that the Veteran's weight and age had increase after his active duty service. Thus, the Board's interpretation of the 2014 VA opinion is that the Veteran's sleep apnea was more likely due to both his increased weight and age as these factors were the leading risk factors for sleep apnea. So, as the Veteran's weight and age progressively increased, so did his prevalence for sleep apnea, until his diagnosis in 2007, some 24 years after active duty and after almost 100 pounds of weight gain. Importantly, the examiner found that it was less likely than not that the Veteran's sleep apnea was related to his active duty service, including his reports of loud snoring. However, as stated above, the Board has already determined as also noted by the Court that the medical opinion provided by the 2014 examiner has no probative value as it was based on inaccurate factual premises. The Board notes that the Veteran has stated that the Court ordered the Board to find the 2014 VA report favorable if the Veteran was found to snored in-service. See Appellant's August 2020 Brief. This is not the determination made by the Court. As stated by the Court in its 2021 Memorandum Decision, the 2014 VA examination appears favorable and the Board was directed to address the potentially favorable evidence [emphasis added]. As discussed above, the Board had done so. The Board notes that at no time has the Veteran or his representative identified or introduced any evidence which provides a link between his active duty service and his sleep apnea or provided any contradictory evidence to the February 2018 and May 2019 VA examinations which found no link between the Veteran's sleep apnea and his active duty service. As such, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.