Citation Nr: 21070667 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-11 127 DATE: November 24, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's obstructive sleep apnea did not begin during active duty, is not otherwise related to any injury or disease incurred during active duty, and is not caused by or aggravated by a service-connected disability. CONCLUSION OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to March 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for sleep apnea. The Veteran's notice of disagreement (NOD) was received in June 2017. The RO issued a statement of the case (SOC) in January 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in February 2018. In January 2020, the Veteran testified at a Central Office Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. In March 2020, the Board remanded the case to the RO for further development and adjudicative action. ENTITLEMENT TO SERVICE CONNECTION FOR SLEEP APNEA. The Veteran contends his current obstructive sleep apnea is caused by or related to active military service. Specifically, he asserts that his sleep apnea was caused by being hit in the head by a davit during service and that his symptoms of obstructive sleep apnea began during service. He also contends that his sleep apnea is secondary service-connected tension headaches. The Board concludes that that the Veteran's current obstructive sleep apnea was not diagnosed until many years following service discharge; and, the competent evidence in this case does not link the Veteran's post-service diagnosis of obstructive sleep apnea to the credible lay evidence of his in-service observable symptoms and is not caused by or aggravated by service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), 3.310. Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). The Veteran has a current diagnosis of obstructive sleep apnea. Specifically, a January 2015 private sleep study report reveals a diagnosis of obstructive sleep apnea. A May 2020 VA examination also reveals that the Veteran has a current diagnosis of obstructive sleep apnea. The Veteran's service treatment records show that the Veteran was not diagnosed with or treated for obstructive sleep apnea during active service. There is also no contemporaneous evidence of the Veteran reporting symptoms of obstructive sleep apnea during active service to include snoring, pauses in breathing while sleeping, and/or hypersomnolence. A November 1983 medical examination for the Coast Guard Reserve does not reflect that the Veteran had sleep apnea or symptoms of sleep apnea. A November 1983 Report of Medical History form shows that the Veteran denied a history of head injury and frequent trouble sleeping. He did not report experiencing any symptoms of sleep apnea. A May 1985 reenlistment examination for the United States Coast Guard Reserve does not document that the Veteran has sleep apnea or experiences any symptoms of sleep apnea. A May 1985 Report of Medical History form reveals that the Veteran denied a history of head injury and frequent trouble sleeping. He also did not report experiencing any symptoms of sleep apnea. Private treatment records dated in January 2009 and June 2011 show that the Veteran denied fatigue and denied sleep disturbance. The first medical evidence of any reports of symptoms of a sleep problems was in the March 2012 VA traumatic brain injury examination where the Veteran reported sleep problems, only getting about three to four hours of sleep at night, difficulty returning to sleep when he wakes up at night, and feeling fatigue. The first medical evidence of a diagnosis of sleep apnea was in January 2015. While the Veteran and a fellow service member are competent to report observable symptoms, such as snoring and pauses in breathing, the etiology of obstructive sleep apnea relates to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the lay assertions as to the etiology of the Veteran's observable symptoms are not competent evidence. With respect to the issue of whether the Veteran's sleep apnea had its onset in or is otherwise related to active service, the record contains a negative medical opinion. In this regard, a May 2020 VA examiner determined that the Veteran's claimed condition was less likely than not incurred in or caused by the injury, event, or illness. The examiner explained that the Veteran's active duty symptoms reported by the Veteran and in lay statements are subjective only. There were no complaints of sleep issues on active duty or on entrance examinations to reserve duty in 1983 and 1985. The 1985 examination indicates excellent health. A 2009 treatment record shows no concerns with sleep. It was not until 2012 when concerns first appeared with regards to compensation and pension process. At that time, no diagnosis of sleep apnea existed. The examiner noted that it was not until 2015 when the Veteran was formally diagnosed. The examiner concluded that the lay statements are not supported by the evidence. There was no objective evidence of a chronic condition since active duty or due to laceration characterized as minor cut in September 1978 on active duty. The examiner considered the lay statements from the Veteran, his wife, and a fellow service member and found that the observable symptoms noted in service were not necessarily symptoms of sleep apnea, given the lack of other risk factors and other complaints during active service, as well as, the many years between service and diagnosis. The May 2020 VA medical opinion is persuasive and probative as to the issue of whether the Veteran's current obstructive sleep apnea had its onset in or is otherwise related to active service as the examiner provided a clear rationale that considered the medical and lay evidence of record, medical literature, and clinical experience. The examiner considered the lay statements of record and found that the observable symptoms noted in service were not necessarily symptoms of sleep apnea, given the lack complaints during active service, as well as, the many years between service and medical complaints and diagnosis. With respect to whether the Veteran's service-connected obstructive sleep apnea is caused or aggravated the Veteran's service-connected tinnitus and/or headaches, the record contains a negative medical opinion. Specifically, the May 2020 VA examiner provided the opinion that the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. The examiner explained that the conditions are not medical related. The claimed obstructive sleep apnea disorder is a separate entity entirely from the service-connected conditions and unrelated to them. The medical literature does not support a medical relationship. Tinnitus and headaches are not causes of obstructive sleep apnea. The examiner noted that sleep apnea can be caused by a person's physical structure or medical conditions. These include obesity, large tonsils, endocrine disorders, neuromuscular disorders, heart or kidney failure, certain genetic syndromes, and premature birth. The examiner also provided the opinion that the Veteran's obstructive sleep apneas was not at least as likely as not aggravated beyond its natural progression by service connected condition. The examiner explained that as no medical relationship is established, then no aggravation is plausible. Additionally, there is no clinical evidence obstructive sleep apnea has been aggravated by any cause as no diagnosis of pulmonary hypertension or cor pulmonale has been diagnosed. The May 2020 medical opinion is persuasive and probative as to whether the Veteran's obstructive sleep apnea is secondary to his service-connected disabilities to include tinnitus and headaches as the examiner a clear explanation based on the evidence of record, general medical knowledge, and medical literature. Although the Veteran sincerely believes his obstructive sleep apnea began in service, is related to active service to include being hit in the head, or is secondary to his service-connected tinnitus and/or headaches, he is not competent to provide a diagnosis of obstructive sleep apnea or a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge and interpretation of medical testing. Therefore, it is outside the competence of the Veteran, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). While his lay statements regarding observable snoring and trouble breathing during the night are credible, they are not competent to diagnose sleep apnea and the Veteran's opinion that these symptoms represent the onset of sleep apnea is not competent. Consequently, the Board gives more probative weight to the service treatment records that do not document any symptoms or diagnosis of obstructive sleep apnea, post-service treatment records that show that the Veteran was not diagnosed with obstructive sleep apnea until January 2015, and the May 2020 negative VA medical opinion. The record does not contain any probative medical evidence or opinion that would indicate the Veteran's current obstructive sleep apnea is related to military service or is caused by or aggravated by a service-connected disability. As discussed above, the only probative medical evidence of record asserts that the Veteran's obstructive sleep apnea did not have its onset in or is otherwise related to active service and is not caused by or aggravated by a service-connected disability. In conclusion, the preponderance of the evidence weighs against a finding that the Veteran was first diagnosed with obstructive sleep apnea during active service or that the Veteran's diagnosis of obstructive sleep apnea was incurred or aggravated during active service. The evidence of record shows that the probative medical opinion provides evidence against the claim that the Veteran's obstructive sleep apnea is caused by or aggravated by service-connected disability. Thus, entitlement to service connection for obstructive sleep apnea is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.