Citation Nr: 21074455 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-57 756 DATE: December 15, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The evidence is not in equipoise in showing that the Veteran's sleep apnea was incurred in or caused by an event or injury during service. CONCLUSION OF LAW The criteria to establish service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2018 and July 2021 and has returned to the Board for further appellate review. Entitlement to service connection for sleep apnea is denied The Veteran contends that service connection for sleep apnea is warranted due to exposure to hazardous chemicals, such as trichloroethylene (TCE), while stationed at Wurtsmith Air Force Base (AFB) in Michigan. See e.g., Fully Developed Claim, received January 16, 2015; Form 9 received November 21, 2016. A. Applicable Law Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. B. Discussion In this case, service connection is denied as the evidence is not in equipoise in showing that it began during active service or is otherwise related to an in-service injury, event, or disease. The Veteran has a current diagnosis of sleep apnea. This is confirmed by the medical evidence, including an October 2019 VA examination. The evidence also shows an in-service event. The Veteran's service personnel records confirm that he was stationed at Wurtsmith. The Veteran also submitted information from the Michigan Department of Health and Human Services (MDHHS), which discusses TCE and other chemical contamination in the Wurtsmith AFB water supply. This evidence makes it at least as likely as not that he was exposed to these chemicals at that location during service. The Veteran has not expressly contended that the condition first arose in service. He wrote in October 2019 that the condition "is believed to have existed, in my case, as an undiagnosed condition for years." He did not indicate that those years extended back to service. To this end, service treatment records do not reflect any complaints or symptoms commonly associated with sleep apnea. At the time of his separation from active service, the Veteran endorsed a history of numerous, unrelated symptoms, but denied a history of throat trouble, shortness of breath, chronic cough, frequent trouble sleeping, and periods of unconsciousness, plus any illness or injury other than those already noted. Upon examination at discharge, the Veteran had a normal evaluation of the lungs and chest. See December 1977 Report of Medical Examination. Overall, this evidence confirms an event during service, but no signs of the condition manifesting in service. The evidence does not provide a nexus between the Veteran's sleep apnea and the exposures during his service. He submitted a report by the Agency of Toxic Substances and Disease Registry (ATSDR), which describes possible side effects from exposure to TCE. It lists "sleepiness," but not sleep apnea. In his VA Form 9, the Veteran cited an additional three websites with information from ATSDR. They list the numerous medical complications potentially resulting from exposure to the chemicals at issue. They list "[s]leep [d]isturbances," but not sleep apnea. Hence, this evidence does not indicate a nexus to service. In October 2019, a VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by service. As noted in the July 2021 remand, the October 2019 examiner did not adequately address the evidence submitted by the Veteran regarding exposure to TCE, specifically the ATSDR report and MDHHS excerpt. The Veteran was afforded another VA examination in August 2021. In a September 2021 addendum opinion, the VA examiner opined that "if there is any relationship between the exposure of hazardous gas TCE claimed by the [V]eteran, the examiner could not find any supporting evidence that TCE exposure can cause sleep apnea." The examiner also found significant that there was a 30-year time period between the Veteran's discharge from active duty and diagnosis of sleep apnea. The September 2021 opinion was based upon a review of medical literature and the Veteran's treatment records and reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. It did not expressly "consider and discuss the evidence submitted by the Veteran regarding exposure to TCE at Wurtsmith AFB," as directed by the Board's prior remand. However, the examiner, elsewhere in the report, acknowledged that "[h]is active duty service include[d] exposure with carcinogen (trichloroethylene) in military base Wurtsmith AFB." The examiner also cited medical literature as it pertains to the relationship between chemical exposure and the different medical condition, which indicates that the VA examiner researched the potential health effects of the chemical exposures at Wurtsmith. At present, the Board can find no reason to call into question or otherwise discount the probative weight of the VA examiner's opinion. The examiner's opinion is clear and unequivocal, and it was based on the relevant information, including the relevant in-service and post-service information. Moreover, the examiner's explanation is understandable, and all inferences appear to follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board is not competent to question the VA examiner's professional medical judgment or otherwise substitute its own judgment on these medical questions for that of the VA medical examiner. See Fountain v. McDonald, 27 Vet. App. 258, 273, 274-75 (2015). Thus, overall, the VA examiner's opinion is of great probative weight and establishes why, as a medical matter, a nexus in this case is unlikely. The Veteran believes his sleep apnea is related to an in-service injury, event, or disease. He wrote in October 2019 that "[s]leep [apnea] has been shown to statistically manifest most often in response to toxic chemical exposures and/or high levels of stress (undiagnosed PTSD?)." He did not identify the source of this statistical evidence; it is not in the claims file for the Board to review. Hence, it is not probative evidence supporting a nexus. He is not service-connected for PTSD or any psychiatric disability, so service connection on a secondary basis cannot be established as a matter of law. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). (Continued on the next page) Otherwise, it is within the common knowledge and experience of a lay person to understand that exposure to toxic chemicals can result in many negative health complications. However, the nexus question at issue in this case is medically complex, as it requires advanced medical knowledge of the risk factors for sleep apnea, the pathology of the condition, the severity, duration, and complications of the chemical exposures, and the relationship between these factors in the context of the instant case. This question 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, supra. Although he indicated that his sleep apnea might have been undiagnosed for many years, the VA examiner's opinion shows that this latency period is unlikely to have arisen during service. Consequently, the Veteran's statements are entitled to little probative weight, and they are not sufficiently probative to weigh against the September 2021 VA examiner's negative nexus opinion. In short, although the Veteran has established a current disability, the probative evidence is not in equipoise in showing that there is a nexus to the chemical exposures in service. As the evidence is not in equipoise, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.