Citation Nr: 21072512 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-39 575 DATE: December 3, 2021 ISSUE Entitlement to service connection for obstructive sleep apnea (OSA). ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT An obstructive sleep apnea disability was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an obstructive sleep apnea disability have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1985 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021 the Veteran testified before the undersigned Veterans Law Judge in a video teleconference hearing. A transcript of the testimony offered at the hearing has been associated with the record. The Board remanded the issue on appeal for additional development in September 2021. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for obstructive sleep apnea (OSA). The Veteran contends that his OSA is related to his active service. When the Veteran filed his claim for service connection in July 2016, he claimed that his sleep apnea was secondary to granulomatous lung disease. The Board notes that the Veteran was denied service connection for granulomatous lung disease in an October 2016 rating decision, and he did not appeal that issue. At the June 2021 Board hearing the Veteran clarified that he is only seeking service connection for sleep apnea on a direct basis and not secondary to a breathing issue because he has not been service-connected for a breathing issue. The Veteran contends that his OSA began during and has continued since active-duty service. At the outset the Board notes that the Veteran's service treatment records (STRs) are silent for any complaints, diagnosis or treatment for any sleep problem during service, including his May 1994 separation examination. The Veteran sought treatment for his sleep problems in April 2016. At that time he reported that he did not feel rested, and his wife reported that he "snores, gasps and has apnea while sleeping." VA treatment records reflect than an overnight polysomnography was performed in June 2016 and revealed a diagnosis of moderate obstructive sleep apnea. Following the June 2016 diagnosis, VA treatment records reveal ongoing provision of a CPAP device to treat the Veteran's obstructive sleep apnea. The Veteran was afforded a VA examination for his sleep apnea in September 2016. The examiner continued the diagnosis of OSA. At that time the examiner opined that there was no evidence that the Veteran's OSA was related to his active- duty military service. In providing a rationale, the examiner explained that following a review of the Veteran's STRs there was no evidence of sleep apnea, nor its symptoms or signs indicating that it was incurred during, caused by, or aggravated by active- duty military service. The examiner noted that he reviewed the Veteran's post-service treatment records which revealed the initial diagnosis of OSA in June 2016, which was approximately 20 years after his separation from service. The examiner explained that sleep apnea is a common disorder in the general population and can be related to both structural and neurological factors. However, the examiner concluded there was no evidence at the time to link the Veteran's OSA to active-duty service. At a January 2021 Board hearing the Veteran testified that his ex-wife brought it to his attention that he had experienced coughing, choking and breathing issues at night. He testified that his ex-wife told him a few years after he was discharged that she noticed that he had actually began to experience those symptoms when he was still in the military. The Veteran also testified that other people that he served with also expressed to him that he snored while on active duty. The Veteran testified that he did not pursue the issue earlier because he had initially attributed those symptoms to stress. In addition to his Board hearing testimony the Veteran has provided multiple lay statements in which he asserts that he has been experiencing ongoing symptoms of his sleep disability since service. In June 2021 correspondence, the Veteran explained that when he was in service, he was not encouraged to go to sick call and was taught to not complain about issues such as having problems sleeping. The Veteran also explained that though he was experiencing symptoms such as snoring and not sleeping properly, he did not attribute these symptoms to sleep apnea and therefore did not report them upon discharge from service. After the September 2021 Board remand requesting an addendum opinion on the sleep apnea claim, to include consideration of the Veteran's lay statements, the Veteran was afforded a new VA examination in October 2021. Following a review of the claims file and an in- person examination, the VA examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's sleep apnea disability was related to service. This examiner provided a rationale noting the Veteran's lay statements, however concluding that there was no evidence without mere speculation that the Veteran had OSA while in service. The examiner explained that while the Veteran reported that, per his wife, he experienced coughing, choking and breathing issues in service, these symptoms could also be caused by respiratory issues and even cardiac issues, however they were not evaluated at the time. The examiner noted that there was no evidence that the Veteran sought any treatment until 2016, when he received his sleep study test. The examiner also stated that at the time of the sleep study the Veteran was obese and had hypertension, which were risk factors in developing OSA. For these reasons the examiner explained that no nexus had been established. The Board finds the October 2021 VA opinion to be of great probative value. The examiner's opinion considered the Veteran's specific contentions of his in- service events, the claims file, and clinical medical evidence, before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The examiner's negative etiological opinion was supported by a sufficiently clear and well-reasoned rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). For example, the examiner explained that the Veteran was not diagnosed with OSA until 2016 and at the time of his diagnosis he possessed other risk factors for this disability, including obesity and hypertension. There is no evidence that the October 2021 VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds that it is entitled to significant probative weight as to the etiology of the Veteran's OSA. See Nieves-Rodriguez, Id. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran, along with his spouse, via the supplied statements, are competent to testify about his symptoms relating to his claimed sleep apnea disability. However, there is nothing in the record to suggest that the Veteran or his spouse have the appropriate training, experience, or expertise to render a medical opinion regarding etiology of his sleep apnea. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran's last date of active service, in August 1994, and the initial mention of sleep problems in his treatment records in April 2016 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes there are no statements by any medical provider, VA or private, that are in favor of a possible nexus to service for the Veteran's claimed sleep apnea disability. Upon review of the record, the Board concludes that entitlement to service connection for sleep apnea is not warranted. The Board notes a current diagnosis of the sleep apnea disability in June 2016 following the sleep apnea study, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted, along with that of his current spouse and ex- spouse. However, the Veteran's service medical records, to include all examinations, are silent for any existing sleep or related condition at the time of separation, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The October 2018 VA examiner reviewed the entire claims file and discussed the symptoms and possible risk factors raised by the record and opined that the Veteran's sleep apnea is not related back to active service. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. (Continued on next page.) Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed sleep apnea disability was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a sleep apnea disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.