Citation Nr: 21072325 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 11-05 356 DATE: December 2, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The probative evidence of record demonstrates that the Veteran's sleep apnea did not originate in service or for many years thereafter and is not related to any incident during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1991 to June 2002. In a May 2019 Board of Veterans' Appeals (Board) decision, the Board, in pertinent part, denied service connection for sleep apnea. The Veteran appealed the Board's May 2019 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a memorandum decision, the Court, in an October 2020 Order, vacated the Board's May 2019 decision (as to the matter of entitlement to service connection for sleep apnea) and remanded the matter to the Board for action consistent with the directives of the memorandum decision. The Board remanded the claim in June 2021 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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 medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for sleep apnea The Veteran contends that his sleep apnea began during his active duty service. The question for the Board is whether the Veteran has a current disability that began during service, is otherwise at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea (OSA), the preponderance of the evidence weighs against finding that his OSA began during service or is otherwise related to an in-service injury, event, or disease or to a 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), (d). Department of Veterans Affairs (VA) treatment records show the Veteran was diagnosed with OSA in September 2007, years after his separation from active duty service. The September 2007 sleep study noted witnessed apneas. The service treatment records indicated that the Veteran's weight varied from 148 lbs. to 193 lbs. A January 1993 note indicated difficulty falling asleep during the night with no snoring. Also, a June 2001 physical examination noted that the Veteran had trouble sleeping that was attributed to depression. During his January 2015 Board hearing, the Veteran indicated that his ex-wife had told him that he was constantly snoring around 1999 or 2000, shortly before he sought treatment for depression. The Veteran underwent a VA examination in October 2015. He was diagnosed with OSA. The VA examiner provided a negative etiology opinion predicated on the lack of an in-service diagnosis of sleep apnea. The Veteran underwent a VA examination in January 2017. He was diagnosed with OSA. He noted sleep problems during his active duty service. The VA examiner provided a negative etiology opinion predicated, in part, on the role of increased body-mass index and age. In December 2017, a VA examiner opined that the Veteran's current sleep apnea is less likely than not due to his active duty service. Though the Veteran stated during his January 2015 Board hearing that his ex-wife noted snoring and a body weight increase during active duty service, there was no objective evidence (i.e. a sleep study) of OSA until 5 years later in September 2007. The examiner found that the Veteran's reported sleep disturbances during his service were due to insomnia caused by depression, which was noted in a June 2001 physical examination. The preponderance of the medical evidence and experts reveal that the proximal causes of OSA are a developmentally narrow oropharyngeal airway, often with a superimposed elevation of body mass index (BMI), creating encroachment of the airway with fatty soft tissues. The Veteran was diagnosed with obstructive sleep apnea 5 years after his separation from active duty service. The Court's October 2020 memorandum decision indicated that the December 2017 opinion was inadequate as the examiner did not address whether the Veteran's in-service weight gain played any role in the Veteran's development of sleep apnea. Therefore, in June 2021, the Board remanded the claim for service connection for OSA to address whether the Veteran's in-service weight gain played any role in the Veteran's development of sleep apnea. In August 2021, a VA examiner opined that it is less likely than not that sleep apnea is related to any in-service disease, event, or injury, including the Veteran's in-service weight gain. The claims file was reviewed. The examiner explained that the Veteran consistently reported that his primary sleep issue was difficulty falling asleep. This is not consistent with sleep apnea. Hypersomnolence is a marker for sleep apnea which generally causes sleep to come easily but is frequently interrupted by periods of apnea or hypopnea that leads to arousal from sleep. The examiner noted that the reports of snoring did not confirm or support a diagnosis of sleep apnea. While almost everyone with sleep apnea snores, not everyone that snores is diagnosed with sleep apnea. The Veteran entered service at a normal weight and had age-appropriate weight gain during active service. The examiner noted that some additional weight gain was attributable to medication around the time of separation. Notably, at separation, the Veteran's weight was high normal/ mildly overweight (BMI 26.2). At the time the Veteran was diagnosed with OSA, his BMI was much higher at 29.8, almost at the level of obesity (BMI 30). Medical literature notes that elevated BMI is the greatest risk factor for OSA. While the Veteran had gained wight during active service, it was not considered an issue for retention and his in-service symptoms were not consistent with OSA. The Board finds that the examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran is competent to report his symptoms associated with his sleep apnea, and any frequent waking symptoms are readily apparent to a lay person. However, the Veteran is not shown to be competent to determine the etiology of the claimed disability. This determination requires medical skill, knowledge and expertise. The Board finds that there is no competent medical evidence of record to indicate that the Veteran's sleep apnea is related to his military service. After weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's sleep apnea was incurred during his service. See 38 U.S.C. § 1110. Accordingly, the Board finds that the criteria for service connection for sleep apnea are not met and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.