Citation Nr: 21076123 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-31 686 DATE: December 22, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The competent evidence of record does not reasonably support a finding that the Veteran's obstructive sleep apnea had its onset in service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1966 to October 1968. A hearing was held before the undersigned Veterans Law Judge in November 2017. A transcript is of record. By way of background, in January 2020, the Board of Veterans' Appeals (Board) issued a decision that denied service connection for obstructive sleep apnea, to include as secondary to hypertension and/or service-connected posttraumatic stress disorder (PTSD). The Veteran appealed the Board's denial of service connection for obstructive sleep apnea on a direct basis to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court issued an Order that vacated the Board's January 2020 decision, to that extent, and remanded the matter on appeal for adjudication consistent with the instructions outlined in a Joint Motion for Partial Remand (JMPR) by the parties. Importantly, the Veteran did not appeal the Board's denial of service connection for obstructive sleep apnea as secondary to hypertension and/or service-connected PTSD and that portion of the appeal was dismissed. Following the Court's remand, the Board remanded the case in May 2021 to obtain an addendum medical opinion. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In rendering a decision on 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider considers such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The United States Court of Appeals for Veterans Claims has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for obstructive sleep apnea The Veteran contends he has obstructive sleep apnea which is related to his military service. The Veteran's VA treatment records confirm he has a current diagnosis of sleep apnea. However, his service treatment records (STRs) are silent for any signs, symptoms, findings, or diagnosis of obstructive sleep apnea. Instead, at the November 2017 Board hearing, the Veteran testified to having heavy snoring in service, which he described as "almost like you stop breathing". While the Veteran is competent to report that he suffered from heavy snoring during service, which he described as "almost like you stop breathing", he is not competent to provide a diagnosis or determine that these sleeping-related issues were a manifestation of sleep apnea as they have not demonstrated the necessary medical expertise to provide a diagnosis in this case. Diagnosing sleep apnea requires medical knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board, therefore, gives more consideration to the medical evidence of record which shows by a preponderance of evidence that the Veteran's sleep apnea is less likely than not related to his military service. In August 2019, the Veteran was afforded a VA examination. After examining the Veteran and reviewing his claims file, the VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his service. In support of that opinion, the examiner highlighted that the Veteran's sleep apnea was diagnosed approximately 20 years earlier and that he had separated from active duty service approximately 50 years earlier; this meant there was a 30-year gap between the Veteran's active duty service and diagnosis of sleep apnea. The examiner further noted that the Veteran's STRs were silent for any signs or symptoms of sleep apnea. The examiner also considered the Veteran's statements of heavy snoring during service but found that there was no objective evidence of sleep apnea until many years following his service. See August 2019 VA Medical Opinion. In the January 2021 JMPR, it was determined that although the August 2019 VA examiner had noted the Veteran's complaints of heavy snoring in service, it appeared the examiner's opinion was based solely on the STRs being silent for signs or symptoms of obstructive sleep apnea. As it was unclear to the Board whether the August 2019 VA examiner's opinion included consideration of the Veteran's reports of heavy snoring in service, a clarifying medical addendum opinion was sought. In September 2021, the Veteran's claims file was returned to the VA examiner who rendered the August 2019 VA examination. She then provided another opinion stating that it was based on a review of the Veteran's history, physical, sleep study results, all available medical records in the claims file, and medical literature. The examiner reiterated her opinion that the Veteran's current sleep apnea was less likely than not incurred in or caused by his military service. In support of that opinion, the examiner again highlighted the fact the Veteran was diagnosed with sleep apnea approximately 20 years earlier while separating from service approximately 50 years earlier. Therefore, there was a 30-year gap between active duty and the Veteran's diagnosis. The examiner then stated that although the Veteran reported having heavy snoring in service, described as "almost like you stop breathing", that did not qualify as objective evidence of sleep apnea. Citing to medical literature, the examiner noted that a JAMA article which was a meta-analysis from 1966-2013 showed how a history of "snoring" was NOT (emphasis added by examiner) useful in establishing the diagnosis. She then provided quotations from the medical literature, which stated that snoring on its own was common and did not discriminate between those with or without obstructive sleep apnea. Likewise, self-reported sleepiness and morning headaches did not help discriminate among patients with and without obstructive sleep apnea. The examiner also noted that UpToDate reports similarly found, "While snoring is associated with a sensitivity of 80 to 90 percent for the diagnosis of obstructive sleep apnea, its specificity is below 50 percent. The actual percentage of snorers who have sleep apnea varies greatly and solid data are lacking." As to the Veteran's description of having heavy snoring in service where it was "almost like you stop breathing", the examiner stated that was a subjective description and did not indicate actual apnea. The examiner concluded there was no objective evidence of sleep apnea in the Veteran until several decades following his service. See September 2021 VA medical addendum opinion. Given the September 2021 VA addendum medical opinion, which was grounded in the medical evidence in this case, and provided a thorough explanation addressing the Veteran's lay contentions of snoring during his military service, the examiner's opinion is afforded the greatest weight. Importantly, the VA examiner considered the Veteran's lay assertions of in-service snoring and having episodes where it was almost like he would stop breathing and, with citations to medical literature, explained how these reports were not objective evidence of sleep apnea. Instead, snoring on its own was common, and could occur in people with or without sleep apnea. Without clear objective evidence of sleep apnea during service, the examiner found the 30-year gap between active duty and the Veteran's diagnosis of sleep apnea weighed against his claim for service connection. Consideration has also been given to the Veteran's assertion that his sleep apnea is related to his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the nature and etiology of sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In conclusion, the Board finds that there is no probative evidence to warrant service connection for obstructive sleep apnea. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Service connection for sleep apnea is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.