Citation Nr: 21006964 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-29 026A DATE: February 8, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea did not have its onset in service, did not manifest within a year of separation from service, is not etiologically to any aspect of active duty service, and is not etiologically related to his in-service exposure to tactical herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to March 1974, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2018 and July 2020, on which occasions it was remanded for development. It has been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran carries a current diagnosis of obstructive sleep apnea, originally diagnosed in December 1999, and thus the first element of service connection has been satisfied. The Veteran avers that his sleep apnea is etiologically related to service, and/or that it is etiologically related to in-service exposure to tactical herbicides. The Veteran served in the Republic of Vietnam, and thus exposure to tactical herbicides is conceded in this case. However, obstructive sleep apnea is not among those conditions presumptively linked to tactical herbicide exposure; thus, one question before the Board is whether, in the Veteran’s case, tactical herbicide exposure is in fact etiologically related to his diagnosed sleep apnea. While the record reflects a long history of treatment for sleep apnea, no treating or examining provider has ever explicitly linked the Veteran’s condition to any aspect of active duty service, including exposure to tactical herbicides. To explore the etiology of his sleep apnea, the Veteran was afforded a VA examination in October 2019, pursuant to which the examiner indicated that because of the 25 year gap between separation and initial diagnosis of sleep apnea, the lack of evidence of sleep apnea or any other sleep problems in service, and because of the nature of sleep apnea and its etiological association with the aging process, there was no justification supporting a link between sleep apnea and service in the Veteran’s case. An October 2020 addendum opinion added that the Veteran’s in-service treatment for asthma, bronchitis, allergic rhinitis, upper respiratory infection, and chest congestion in service was unrelated to the development of sleep apnea several decades later, given that obstructive sleep apnea is “an anatomical condition in which the structures of the upper airway relax/prolapse during sleep…result[ing] in the temporary occlusion of the airway.” For the same reason, the examiner explained there was no basis to conclude there was any causal or contributory link between herbicide agent exposure and sleep apnea. The Board accepts the VA examiner’s opinion, including its addendum, as the most probative evidence of record on the questions of service connection in this case. The opinion reflects a thorough in-person examination of the Veteran and review of the medical file, as well as due consideration afforded the Veteran’s lay contentions. The opinion is uncontroverted by any objective or opinion evidence in the record, and its rationale finds support in the medical evidence. The Board acknowledges the August 2014 private disability questionnaire submitted by the Veteran’s provider, but notes that questionnaire does not contain a medical opinion as to etiology, nor does it cite evidence tending to show the Veteran’s current sleep apnea bears any relationship to active duty service, or to exposure to herbicide agents. While the Board has considered with sympathy the Veteran’s lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his sleep apnea in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran’s reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of sleep apnea is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran’s diagnosed sleep apnea had its onset in service or within a year of separation therefrom, or is related to active service, or that it bears any etiological relationship to his conceded exposure to tactical herbicides. The probative value of the Veteran’s assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for sleep apnea must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.