Citation Nr: A21019187 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200501-85177 DATE: December 2, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for diabetes is denied. FINDINGS OF FACT 1. The Veteran's OSA is etiologically related to his time on active duty. 2. The Veteran's diabetes was not shown in service or for many years thereafter, and there is no competent, probative evidence or opinion demonstrating a relationship between diabetes and the Veteran's military service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to August 1982 and from September 1982 to November 1987. He appeals a March 2020 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran requested his appeal be placed on the hearing docket. See May 2020 VA Form 10182. A Board hearing was held in August 2020. A transcript is of record. Under the hearing docket, the Board is authorized to review the evidence considered by the AOJ up until the March 2020 rating decision, in addition to evidence submitted at the Board hearing or within 90 days of the Board hearing. SERVICE CONNECTION A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. OSA The Veteran contends that his OSA symptoms began in service and have continued to date. See Board Hearing Tr. at 9-10. The Veteran has a diagnosis of OSA. See March 2020 rating decision favorable findings. Therefore, the key issue in this case is whether the Veteran's OSA began during active service or is otherwise related to service. During his August 2020 hearing, the Veteran stated that he could fall asleep anywhere and snored loudly during service. He stated that he had a lot of complaints from his wife at the time and his children that they could hear him snoring throughout the house. See Board Hearing Tr. at 7, 9. His current wife added that when she met the Veteran in 1992, she also noticed that he had problems with loud snoring and would need to wake him up or turn him on his side to help with the snoring. Id at 14. The Veteran's son provided a statement recalling that when the Veteran would come home from work while in service he would sleep and snore loudly. He continued to observe the loud snoring until he moved out in 2007. He stated that he questioned whether the Veteran's snoring was normal, but after some years he got used to it. See September 2020 R.B. statement. Here, the Veteran has provided his own competent lay statements, as well as lay statements from his wife and son who are competent to observe his sleeping behavior indicating that he has experienced sleep apnea symptoms, including excessive snoring and daytime sleepiness, since service. Based on the unique facts of this case, to specifically include the Veteran's competent and credible report of in-service symptoms, and the medical evidence considering such symptoms in support of a post-service diagnosis of sleep apnea, the benefit sought is granted based on in-service incurrence. See 38 C.F.R. § 3.303(d) (service connection may 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). Additionally, the Veteran submitted a private medical opinion from Dr. M.B.S., which stated that it is at least as likely as not that the Veteran's OSA was present while he was in service. See September 2020 Dr. M.B.S. opinion. Dr. M.B.S. reasoned that the Veteran's reports of snoring during service, daytime somnolence, and existence of hypertension during service are all indicative that the Veteran's OSA was present during service. Id. Therefore, the Board finds that there is medical evidence of record linking the Veteran's OSA to his time in service. After a careful review of the evidence, the Board finds that it is at least as likely as not that the Veteran's OSA, although not formally diagnosed until after service, was incurred during active service. In reaching this conclusion, the Board finds the Veteran's statements, and the other corroborating lay statements of record, describing his apnea symptoms are competent, credible, and highly probative of the fact that the Veteran's OSA sleep symptoms started in service and continued through his actual diagnosis following service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The same symptoms reported by the Veteran were later confirmed through a sleep study to be manifestations of OSA. Moreover, the record contains a positive medical opinion corroborating the Veteran's contention that his in service symptoms were indicative of OSA that has continued to present. Because the probative evidence of record demonstrates incurrence of OSA during service, service connection for OSA is warranted, and the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Diabetes The Veteran contends that his time in service aggravated his weight problems which caused his diabetes. See September 2019 attorney statement. He argues that his weight fluctuated over his years of service, and that he left service more overweight than he entered. The Veteran's attorney asserts that the number one risk for development of type II diabetes is being overweight. Thus, the Veteran's diabetes is secondary to his weight problems in service. Id. As an initial matter, the Board notes that certain chronic diseases, such as diabetes, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post-service (one year for diabetes), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). There is no dispute that the Veteran has a diagnosis of diabetes. See March 2020 rating decision favorable findings. However, the probative evidence of record shows that the Veteran's diabetes was diagnosed more than 10 years after his discharge from active duty. See Board Hearing Tr. at 3; see also August 2019 VA treatment note. Thus, the diagnosis was made well beyond the one-year post-discharge period for establishing service connection for diabetes on a presumptive basis. See 38 C.F.R. §§ 3.307. 3.309. Further, the Board does not find evidence of an in-service incurrence, event, injury, or disease. The Veteran asserts his diabetes should be service connected because he became overweight during active service, which he theorizes led to his diabetes. See September 2019 attorney statement. VA's Office of General Counsel has specifically stated, "Obesity cannot qualify as an in-service event because it occurs over time and is based on various external and internal factors, as opposed to being a discrete incident or occurrence, or a series of discrete incidents or occurrences." VAOPGCPREC 1-17. The Board is bound by the General Counsel's opinion as Chief Legal Officer of the Department. 38 U.S.C. § 7104(c). It stands to reason that weight gain alone, whether it leads to obesity or not, cannot qualify as an in-service incurrence, event, injury, or disease for the purpose of direct service connection. At the time of the March 2020 rating decision on appeal, the Veteran points to no evidence that his weight gain is a symptom of diabetes. His mere lay assertion is insufficient in this case to afford it any credibility or probative value. Therefore, the second element service connection is not satisfied, and the Veteran's claim fails. As the failure to satisfy the second element is dispositive in this case, the Board will not address the third element, a causal connection. In the interest of completeness, however, the Board will note that although neither an examination nor medical opinion was obtained in this case, the Board finds VA was not under an obligation to provide one as it is not necessary to decide the claim. VA is obligated to provide the Veteran with a VA examination when the record: (1) contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) indicates the disability or symptoms may be associated with the Veteran's active duty service, but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). While the threshold for requiring a medical opinion is low, a VA examination is not necessary in this case because there is no competent evidence that the Veteran's diabetes was incurred in service or otherwise may be related to an in-service event, injury, or disease. Here, the record is absent for any evidence of diabetes in service or for many years thereafter (from 1987 until approximately 1999). The Veteran only relies on his weight gain in service, which VA has determined cannot qualify as an in-service incurrence, injury, or disease for purposes of direct service connection. Thus, there is no reasonable possibility that a medical opinion would aid in substantiating his claim. Id. The Board notes that the Veteran articulated the possibility of symptoms of diabetes being present while in service at his August 2020 Board hearing. See Board Hearing Tr. at 8. Under the AMA, the Board has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error. See 38 C.F.R. § 20.802(a). However, consideration of this evidence cannot constitute a pre-decisional duty-to-assist error as it was raised for the first time at the Board hearing, which was conducted after the March 2020 rating decision on appeal. Ultimately, the record prior to the decision on appeal does not suggest that the Veteran's weight gain during service was a symptom of diabetes, nor did he allege the presence of any other symptoms of diabetes during active service. He simply stated that he gained weight in service which in turn caused his diabetes. The same can be said for the medical opinion of Dr. M.B.S. Dr. M.B.S. stated that the Veteran became morbidly obese after service between 1987 and 2000. He stated that "it is almost certainly the case in [the Veteran's] situation that within a very short period of time of becoming morbidly obese he developed frank diabetes, although he had been diabetic for many years prior to." See September 2020 Dr. M.B.S. opinion. However, this opinion does not provide a nexus between the Veteran's diabetes and his time in service. It merely states that it is likely the Veteran was diabetic prior to his actual diagnosis, a date which Dr. M.B.S. does not specify. Id. Again, consideration of this evidence cannot constitute a pre-decisional duty-to-assist error necessitating remand as it was submitted after the March 2020 rating decision on appeal. As the preponderance of the evidence indicates that the Veteran's diabetes is not related to service, the benefit-of-the-doubt rule does not apply; accordingly, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.