Citation Nr: 21005860 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-21 944 DATE: February 2, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s currently-diagnosed sleep apnea had its onset in or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1985 to December 1989. This matter was previously before the Board in July 2018 at which time it was remanded for further evidentiary development. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In making all determinations, the Board must fully consider the veteran’s assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. 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 is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the Veteran’s service treatment records (STRs) do not contain any complaints, symptoms, treatment, or diagnosis of sleep apnea or sleep-related complaints, including on his November 1989 separation examination. Post-service, during a January 2013 in-patient hospitalization for alcohol dependence, the Veteran reported to VA clinicians that his roommates had informed him that he snored during sleep and would stop breathing. He was not aware of any problem prior to that point. He requested a consult for sleep apnea. A sleep study was conducted in February 2013 which found that the Veteran had severe obstructive sleep apnea. He was subsequently prescribed a CPAP machine. He told VA clinicians that in the distant past he had been diagnosed with sleep apnea, maybe 10 to 15 years previously, but he did not use the machine as it was too cumbersome. The Veteran stated in June 2013 that he did not recall getting treatment for sleep problems while on active duty, but he did recall developing problems at boot camp, continuing through service until the present. He indicated that he had had no other treatment for sleep apnea other than with VA and that there were no other records to obtain. He stated that his sleep had always been intermittent and disturbed. He woke up numerous times per night, often out of breath. He experienced daytime fatigue and irritability. The Veteran’s father also submitted a statement in June 2013 noting that the Veteran did not have sleeping problems growing up. Based on this, he determined that the current condition he witnessed developed during his son’s active service. A VA examination was conducted in September 2020. The examiner concluded that the Veteran’s sleep apnea was less likely than not connected to service. In support, she stated that sleep apnea was typically caused by hormonal imbalance, obesity, drug or alcohol use, or specific anatomical structure or family history. She noted that the Veteran did not have a family history of sleep apnea and did not currently smoke or use alcohol or narcotics. An addendum opinion was obtained in October 2020. The clinician determined that the Veteran’s diagnosis of sleep apnea was less likely than not caused by his contended symptoms of intermittent and disturbed sleep and feeling tired the next day in service. In support, he stated that current objective evidence indicated that the Veteran first complained about sleep apnea symptoms in 2013, at which time he was referred for a sleep study based on his self-requested referral for a sleep consult. The Veteran reported that his roommates stated he had sleep apnea due to snoring and would stop breathing. He was unaware of problems prior to that time. His Notice of Disagreement stated that his sleeping problems began in service and his father’s letter also supported that contention. The examiner continued that while the lay testimony was valid for establishing a chronicity of symptomatology since service, it was not sufficient for establishing a diagnosis or the existence of a condition during service based on those symptoms. The examiner stated that sleep disturbance and non-refreshing sleep can occur due to numerous problems independent from sleep apnea, including due to snoring. Snoring is a condition which can exist as a symptom of sleep apnea; however, it can also be a separate diagnosable condition without the presence of obstructive sleep apnea. For that reason, the gold standard for establishing obstructive sleep apnea is the polysomnography or sleep study. The sleep study directly measures the apnea and hypopnea events during sleep and an apnea/hypopnea index (AHI) is calculated. A threshold of an AHI equal to or greater than 5 per hour is needed for a diagnosis of obstructive sleep apnea. For some individuals, the AHI can vary based on the position of sleep (side versus supine) and during different phases of sleep (REM versus non-REM). It is not uncommon for a sleep study to result in a diagnosis of “primary snoring” without obstructive sleep apnea. Symptoms of snoring and witnessed apnea are therefore not sufficient to establish a diagnosis of obstructive sleep apnea. The Veteran was diagnosed more than 20 years following service without indication other than self-reported sleeping problems and no prior knowledge of any snoring or breathing problems, as reported in 2013. Sleep apnea is a physical condition caused by airway narrowing or obstruction when the throat muscles relax with risk factors including but not limited to being male, excess weight, neck circumferences, age, use of alcohol, smoking, and family history. Based on the Veteran’s medical history, there was no established medical nexus for his sleep apnea due to events during service. The examiner consulted several medical treatises in rendering his opinion. Service connection for sleep apnea is denied. Based on the foregoing, the Board finds that service connection for sleep apnea is not warranted. There is no medical evidence of sleep apnea or any sleep-related symptomology in the Veteran’s STRs. His father stated that he did not have sleep problems prior to service and the Veteran has reported that he experienced symptoms of intermittent and disturbed sleep and feeling tired the next day since boot camp. The Board notes that he is competent to describe his experiences, but he does not have the requisite medical knowledge and expertise to diagnose a complex medical condition such as sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the contemporaneous medical evidence to be more credible than lay statements made many years after separation in connection with a claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59 (1994). As the question of etiology in this case may not be competently addressed by lay evidence, the Veteran’s opinion on this point is non-probative evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 at 1372. In contrast, the Board attaches significant probative value to the October 2020 VA opinion as it is well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history and lay statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The examiner discussed the Veteran’s reported symptomology and reasoned that even if he had continuously experienced intermittent and disturbed sleep and fatigue since service, such symptomology did not equate to a sleep apnea diagnosis, as it could occur due to numerous problems independent from sleep apnea. Indeed, snoring was also not an indication of a sleep apnea diagnosis. He noted several risk factors, including factors which are present in the Veteran’s situation. He is male and was 46 years old and a heavy alcohol user at the time of his diagnosis. Based on the entirety of the medical and lay evidence, the VA clinician determined that sleep apnea was less likely than not related to the Veteran’s active service. As this represents the most competent and credible evidence regarding nexus in the record, the Board finds that service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.