Citation Nr: 21006473 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-24 555 DATE: February 4, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran has been diagnosed with sleep apnea. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1976 to June 1980. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in December 2017 and June 2020 for further development. 1. Entitlement to service connection for sleep apnea The Veteran asserts that his diagnosed sleep apnea is related to his in-service sleep disturbances and weight gain. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). The question for the Board is whether the Veteran’s diagnosed sleep apnea began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, and evidence shows sleep disturbances and weight gain occurred during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. An April 2015 Disability Benefits Questionnaire shows the Veteran was not diagnosed with sleep apnea until sometime in the year 2002, about six years after his separation from service. The Veteran’s diagnosis is confirmed with a February 2002 sleep study from the National Jewish Medical and Research Center. While the Veteran is competent to report having experienced symptoms of sleep problems and weight gain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further the April 2015 Disability Benefits Questionnaire nor the sleep study render a nexus opinion or rationale for the Veteran’s diagnosed sleep apnea and in-service sleep disturbances and weight gain. In an August 2011 VA examination, the examiner noted the Veteran’s report of “ a significant weight increase” about two years after separation from service. The examiner stated that weight gain and obesity are well-established risk factors for obstructive sleep apnea, and identified the Veteran’s history of no improvement following UPPP surgery, nor change in sleep apnea following sinus/septal surgery as lending support to his weight gain being “the main contributing factor for his sleep apnea.” The Veteran asserts that he also experienced weight gain during service. The Board notes that his service treatment records show that he weighed 192 pounds at his reenlistment examination in October 1982 and weighed 235 pounds at his retirement examination in May 1996. In a July 2018 VA addendum opinion, the examiner opined it was less likely than not that the Veteran’s sleep apnea is related to service including consideration of his weight gain and physical stature during service. However, in reaching this conclusion, the examiner did not address the Veteran’s weight gain or stature in service. Instead, the examiner focused on the Veteran’s weight gain after separation from service. In an October 2020 addendum opinion, the examiner opined that the Veteran’s sleep apnea is less likely than not related to an in-service injury, event, or disease, including consideration of the Veteran’s weight gain and physical stature during service. The examiner noted the Veteran’s weight gain shown in service along with no symptoms reported at the time consistent with a diagnosis of sleep apnea. The examiner further noted the Veteran’s complaints of insomnia in service, which improved after adjusting the Veteran’s Synthroid for the hypothyroidism. The examiner continued to note from the evidence of record, the Veteran’s weight at the time of May 1997 had little change from his retirement weight. The Veteran’s weight increased by 20 pounds by August 1999. The Veteran did not report symptoms consistent with sleep apnea until the year 2001. The examiner concluded, it is more likely than not that the additional weight gain as well as an additional increase in age between 1996 and 2001 resulted in the development of sleep apnea in the Veteran’s case. Taken together, the VA opinions of record establish that the Veteran’s sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including sleep disturbances and weight gain. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). (Continued on the next page)   The Board finds that the Veteran as a lay person is not competent to competent to provide an opinion as to the etiology of his current sleep apnea. Such opinion requires specific medical training in the field of sleep studies and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has this medical training required to render medical opinions, the Board must find that his contention with regard to a nexus between his sleep apnea and service is not probative and outweighed by the objective evidence of record which does not support such a finding. See 38 C.F.R. § 3.159 (a)(1) (2016) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his claim are not competent evidence of a nexus. Accordingly, the preponderance of the evidence is against the Veteran’s claim of service connection for sleep apnea. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, Attorney Advisor 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.