Citation Nr: 21005666 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-18 941 DATE: February 2, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran’s sleep apnea did not manifest during, or as a result of, his active duty service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1118, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from September 1963 to May 1983. The Veteran is a recipient of the Vietnam Service Medal and the Good Conduct Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal for additional development in April 2018 and June 2019. The requested opinion concerning the Veteran’s sleep apnea was obtained in June 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease 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, 133637 (Fed. Cir. 2006). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea. He contends that his sleep apnea began in service and has persisted since. As an initial matter, the Veteran’s service treatment records (STR’s) are silent as to any complaints of, treatment for, or diagnosis of sleep apnea or any other sleeping problems in service. Private medical records reveal that the Veteran underwent two overnight polysomnography studies in February 2009. The findings were consistent with a diagnosis of severe sleep apnea, and shortly thereafter the Veteran began using a continuous positive airway pressure (CPAP) machine. A June 2014, Sleep Apnea Disability Benefits Questionnaire completed by the Veteran’s private provider, noted the Veteran’s history of loud snoring and nighttime apneas, with an unclear duration. The provider confirmed the Veteran’s diagnosis of sleep apnea pursuant to the 2009 sleep study. In a September 2014 lay statement, the Veteran contended that sleep apnea was not known of while he was in service but remembers shipmates complaining about his gasping for air in his sleep. Also, in September 2014, the Veteran submitted lay statements from his wife, and daughter, and from a fellow shipmate. The Veteran’s wife stated that his snoring has persisted since service, noting that it worsened in 1974 when the Veteran was stationed at Naval Training Center. She recounted their “routine” for years, of the Veteran’s snoring being so loud that it wakes her up, and her then waking up the Veteran because he stops breathing. His wife stated that they have both suffered for years due to the Veteran’s snoring but finally got some relief once the Veteran agreed to mention his snoring to a doctor and ultimately got a CPAP machine which has improved his snoring. The Veteran’s daughter wrote that as a child in the late 1970’s early 1980’s, she recalls her dad always had snoring problems and was always tired, complaining that he never rested well. His daughter wrote that now as an adult, and as a registered nurse, she realizes that her dad has had sleep apnea all these years. The shipmate stated that the Veteran was known in service to be a loud snorer among the crews who were sleeping in the same area with him. In January 2015, a VA examiner provided a medical opinion as to the nature and etiology of the Veteran’s sleep apnea. After a thorough review of the Veteran’s claims file, the examiner determined that the Veteran’s sleep apnea is less likely than not (less than 50% probability) incurred in or caused by the Veteran’s active service. The examiner explained that sleep apnea can develop due to soft tissue changes in the oropharynx that occur with aging and/or weight gain. Noting the “significant passage of time,” since the Veteran’s service and significant weight gain, the examiner concluded that the Veteran likely developed sleep apnea after separation due to aging and weight gain. In so finding, the examiner noted the absence of symptoms or treatment suggestive of undiagnosed sleep apnea, in the Veteran’s STR’s. In a May 2015 lay statement, the Veteran stated that he did not gain significant weight while on active duty and that his sleep apnea symptoms had already arrived at the time, indicating that they could not have been due to weight gain. In September 2015, the Veteran underwent a CPAP titration sleep study at a private facility. During the treatment, evidence of sleep apnea, leg movements, soft snoring, and arousals were present at CPAP pressure of 5cm/H2O to 13cm/H2O. No bruxism was noted, and the electrocardiograph revealed a normal sinus rhythm throughout the night. The provider noted that the Veteran’s sleep apnea was resolved at CPAP of 14cm/H2O. A March 2018 Informal Hearing Presentation (IHP) submitted on behalf of the Veteran in support of his claim, cites to a medical study regarding a link between sinus problems and nasal breathing problems. The IHP noted an ear, nose and throat specialist who wrote, “sinus and nasal problems often are a part of the problem leading to snoring and sleep apnea and are often overlooked and left untreated.” It was noted that this provider was not involved in the study but rather reviewed the findings and commented. The provider added that patients with sinus problems and nasal breathing problems, “should all be evaluated for snoring and sleep apnea.” In December 2018, the Veteran underwent a VA examination. The examiner found that the Veteran’s sleep apnea was less likely than not incurred in active service. The examiner first noted the Veteran’s 1983 separation from service and that he was not diagnosed with sleep apnea until 2009. The examiner noted that the large weight gain (as much as 37 pounds) and many years aging that occurred after leaving the military strongly suggests that the Veteran’s sleep apnea developed after the military, and that post-service weight gain and aging caused the Veteran’s sleep apnea. Regarding lay statements of record, the examiner noted that lay statements are subjective, and that weights and years elapsed are objective evidence. In June 2019, a VA examiner provided a medical opinion as to the nature and etiology of the Veteran’s sleep apnea. After a thorough review of the Veteran’s claims file, the relevant medical literature, and considering specifically noting consideration of statements from the Veteran’s wife and daughter (both who are registered nurses), the examiner determined that the Veteran’s sleep apnea is less likely than not (less than 50% probability) incurred in or caused by the Veteran’s active service. Citing to medical literature, the examiner explained that sleep apnea is caused by multiple factors, with obesity being well-established as the most important risk factor for developing sleep apnea. A review of the Veteran’s STR’s revealed weight near separation of 178. STR’s were noted as silent for ongoing sleep issues in service. By the February 2009 sleep study, the Veteran had gained 37 pounds. The examiner noted that the large weight gain and almost three decades of aging that occurred following separation prior to the Veteran’s initial diagnosis in 2009, strongly suggest that weight gain and aging after the military caused the Veteran’s sleep apnea. The Board notes that the VA opinions discussed above are the only medical opinions of record to address the medical relationship, if any, between the Veteran's sleep apnea and service. These opinions are adequate for the purpose of assessing the Veteran's claim as the examiners supported their findings with clear rationales based on citation to relevant medical literature and the Veteran's medical history and finds that such opinions are more probative than those submitted by the Veteran’s wife and daughter who are nurses. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board further notes that VA adjudicators are not free to ignore or disregard the medical conclusions of VA physicians, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Finally, the Board notes that neither the Veteran nor his representative has presented or identified any contrary medical opinion that would support the claim for service connection for sleep apnea. In fact, the only evidence of record that supports the Veteran's claim are lay statements by the Veteran and by his spouse, daughter, and a fellow shipmate. While the Veteran and his fellow shipmate are competent to describe factual matters of which they have firsthand knowledge, they do not have the specialized medical education, training, or experience necessary to render a competent medical opinion as to the nature and etiology of the Veteran's sleep apnea. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Layno v. Brown, 6 Vet. App. 465 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Determining the etiology of a condition such as sleep apnea is medically complex in nature. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, any lay opinion by the Veteran or a fellow serviceman that his sleep apnea began in service, does not constitute competent medical evidence and lacks probative value. For the foregoing reasons, the Board finds that a preponderance of the evidence weighs against the Veteran's claim for service connection for sleep apnea. Because the evidence fails to establish that the disability was incurred in or caused by service, the Veteran's claim does not satisfy the criteria for service connection. As such, the benefit-of-the-doubt rule does not apply, and the claim for sleep apnea must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.