Citation Nr: 21075291 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-09 103 DATE: December 20, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea did not manifest in service and is not otherwise related to his military service. CONCLUSION OF LAW Sleep apnea was not incurred in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from February 2007 to June 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2019. A transcript is of record. The Board remanded the case for further development in November 2019. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Sleep apnea is not an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service, and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for sleep apnea is not warranted. The Veteran has claimed that his current sleep apnea began while he was in service. Specifically, he has stated that he had symptoms, including fatigue and feeling like he was choking if he slept on his back. He conceded that no one complained about his snoring, but explained that there was a lot of ambient noise on the submarine. He also indicated that they did not get much sleep when they were out at sea, so everybody was always tired. See July 2019 hearing transcript. The Veteran has also submitted September 2019 lay statements from B.N., A.H. and C.M. (initials used to protect privacy), who reported that, during service, the Veteran snored, was noticeably tired, and had interrupted breathing during sleep. B.N. stated that his breathing would sometimes abruptly stop and then start again with a big inhale. In addition, the Veteran submitted a September 2019 lay statement from his wife, S.M., who indicated that the Veteran was tired and snored occasionally during service. She stated that his snoring got worse towards the end of his military service. She also reported noticing that he appeared to stop breathing momentarily while sleeping on his back around 2011 or 2012. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a sleep disorder, including sleep apnea. In February 2015, the Veteran scored 3 out of 24 points on the Epworth Sleepiness Scale (ESS), which a January 2020 VA examiner later described as normal. Moreover, on an April 2015 report of medical history associated with his separation examination, the Veteran specifically denied past or present frequent trouble sleeping. However, he did report numerous other health problems, including low back pain, knee pain, foot pain, high cholesterol, high blood pressure, hyper-hydrosis, and chronic blepharitis. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The post-service medical evidence shows that the Veteran later underwent a sleep study in March 2016 at which time he was diagnosed with mild obstructive sleep apnea. Based on the foregoing, the Board concludes that the Veteran was not diagnosed with sleep apnea in service. To the extent that the Veteran has asserted that there were symptoms of sleep apnea in service, the Board will address those contentions further below. In addition to the lack of evidence showing that the claimed disorder manifested during active duty service or within proximity to it, the evidence of record does not link any current diagnosis to the Veteran's military service. The Veteran was afforded a VA examination in connection with his claim for service connection for sleep apnea in May 2016. The examiner noted the diagnosis of mild obstructive sleep apnea in March 2016. At that time, the Veteran reported that he was told he snores very loudly and wakes up choking when he sleeps on his back. He reported excessive daytime sleepiness and fatigue. His ESS score at that time was 14, which is consistent with moderate hypersomnia. The sleep specialist noted that no apneic episodes have been noticed by his wife, which contradicts the September 2019 lay statement, and that he had an elevated body mass index (BMI) of 36. See March 2016 private treatment records. The examiner further indicated that he had a neck circumference of 19 inches, redundant soft palate tissue, and a long uvula. However, the 2016 VA examiner did not provide a medical opinion on the etiology of his sleep apnea. A January 2020 VA examiner acknowledged the reported history of symptoms in service, including fatigue and an inability to tolerate sleeping on his back, as well as the diagnosis in March 2016 following a sleep study. She also noted the lay statements submitted on his behalf. The examiner found that the Veteran's weight increased from 205 pounds with a BMI of 27.4 at enlistment in March 2006 to 252 pounds in March 2015 and a BMI of 33.2. She further noted that, in December 2015, when he complained to his primary care doctor about feeling tired upon awakening and inability to tolerate sleeping on his back, his weight was 271 pounds with a BMI of 35.8. The examiner opined that the Veteran's sleep apnea is less likely than not related to his military service, to include any symptomatology therein. She stated that he gained weight during service, but the February 2015 ESS had a total score of 3/24, which is in the normal range, and his BMI at that time was 33.25 with a neck circumference of 17. He consistently denied any frequent trouble sleeping, including on the April 2015 separation examination report of medical history. Almost eight months after separation, when the Veteran was noted to have gained 19 more pounds since his last recorded weight in service, he reported being tired upon awakening and having an inability to tolerate sleeping on his back, which led to referral for a sleep study. He also saw a private sleep specialist in August 2019, who noted that he had risk factors for sleep apnea, including a Mallampati Class 4 oropharynx, a neck circumference of 20.5 inches, and a high-arched hard palate. It was noted that his obstructive sleep apnea was likely due, in part, to his weight, neck size and small airway. While his weight increased during service, the Veteran repeatedly denied any sleep issues during service and had an ESS score in the normal range shortly before his separation from service. Furthermore, the examiner explained that many of the reported signs and symptoms described in the multiple lay statements are not specific to sleep apnea and are not considered diagnostic for sleep apnea. There is no medical opinion otherwise relating the Veteran's current sleep apnea to his military service, including any symptomatology therein. The Board affords substantial probative weight to the January 2020 examiner's opinion, as it is based on an accurate review of the claims file, to include the lay and medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the examiner provided a reasoned explanation for her opinion with clear conclusions. The Board has considered the lay statements provided in this case. The Veteran and his wife and fellow servicemembers are certainly competent to report observable symptoms, such as the Veteran waking up and gasping for air or snoring loudly. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, they are not competent to provide an opinion as to whether such symptoms are attributable to sleep apnea, as it is a medical determination. Indeed, such a diagnosis requires a sleep study. The Veteran has not contended, and the evidence does not show, that they have the medical expertise to provide such opinions. See Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 465. Moreover, even if they are competent to determine that such symptoms were early manifestations of sleep apnea, the Board finds that the specific, reasoned opinion of the January 2020 VA examiner is of greater probative weight than the lay assertions in this regard. The examiner reviewed the claims file and medical literature. She also has training, knowledge, and expertise on which she relied to form her opinion. In addition, she specifically addressed these lay statements and contentions and provided a rationale for the conclusion reached. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.