Citation Nr: 21007531 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-35 849 DATE: February 9, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The most probative evidence indicates that the Veteran’s sleep apnea did not have its onset during active duty nor is it otherwise related to active duty. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1975 to September 1994. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded this matter for additional development. 1. Service connection for sleep apnea. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303. Service connection may also 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. 38 C.F.R. § 3.303(d). The Veteran contends that his current sleep apnea was incurred during active duty because he developed sleep symptoms during service, such as snoring and gasping, which he believes are indicative of sleep apnea. The Veteran’s service treatment records (STRs) contain no indication as to the presence of sleep apnea during the Veteran’s period of active service. At his July 1994 retirement examination, physical examination was normal in all pertinent respects. On a report of medical history completed in connection with the examination, the Veteran endorsed multiple complaints, but specifically denied having or ever having had frequent trouble sleeping or shortness of breath. The post-service record on appeal includes lay statements indicating that the Veteran developed symptoms such as snoring, gasping, fatigue, difficulty sleeping, and difficulty staying awake during service and that such symptoms continued after service. See e.g. August 2014 Correspondence and November 2014 Buddy/Lay Statement. The Veteran underwent a sleep study in October 1999 and was diagnosed as having obstructive sleep apnea (OSA) at that time. He was started on continuous positive airway pressure (CPAP) therapy. In February 2007, the Veteran underwent a sleep re-titration study, which indicated that maximum CPAP pressure obtained was 8cm/H2O, and pressure was increased primarily for mild to moderate snoring. An April 2007 VA note indicates an impression, in pertinent part, of “OSA, stable on CPAP 8” and “obesity, wt stable.” At an August 2019 VA examination, the examiner reviewed lay statements provided by the Veteran’s wife and coworker, the service treatment records, as well as post service clinical records contained in the Veteran’s file. After reviewing the record and examining the Veteran, the VA examiner concluded that the Veteran’s current sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The provided rationale simply stated that the examiner could find no objective evidence supporting a diagnosis of sleep apnea in-service or immediately after service. However, as the examiner failed to address the lay statements of snoring, gasping, and sleeping difficulty while in-service, the Board remanded this matter in December 2019 for a new examination and opinion. The Veteran underwent a VA examination in January 2020 to determine the etiology of his diagnosed OSA. After examining the Veteran, recording his reported history, and reviewing the record, the examiner concluded that it was less likely than not that the Veteran’s current sleep apnea had been incurred in service. In reviewing the record, the examiner noted that the Veteran had denied sleeping difficulties at separation and did not have a diagnostic polysomnogram during active service. The examiner further noted that the record included a January 1993 behavioral health assessment which yielded a diagnosis of a Somatoform Pain Disorder with an overlay of conscious exaggeration and a Personality Disorder, with narcissistic features. The examiner noted that the post-service record on appeal showed that the Veteran had first been diagnosed as having sleep apnea in 1999 via sleep study. The examiner noted that at the time of the 1999 sleep study, the Veteran had gained almost 100 pounds since active duty. He further noted that in 2007, the Veteran had gained additional weight and his sleep apnea therapy had been recalibrated. He indicated that it had recently been switched to an auto BiPAP therapy as prophylaxis against obesity hypoventilation syndrome. The examiner also indicated that he had specifically considered the lay reports but explained that symptoms such as snoring and gasping for air were not synonymous or pathognomonic of sleep apnea. For example, snoring was secondary to turbulent airflow and vibrations caused by relation of the uvula and soft palate. Though snoring was a potential sign of OSA, it could also be caused by obstruction of the nasal passageway, sleep deprivation, or sleeping on one’s back. The examiner observed that the Veteran had reported sleep difficulties due to working night shifts and sinus problems. Similarly, gasping for air is not pathognomonic for sleep apnea. Even when truly representative of an apneic event, they needed to be quantified before reflective of sleep apnea. In other words, physiologically, there needed to be an acceptable number of events; the apnea-hypopnea index set a threshold of 5 or more episodes per hour over the total sleep time as measured by PSG. Thus, up to 4 apneic or hypopneic events per hour of sleep apnea were accepted as normal. Finally, he indicated that the clinical evidence reflected that the Veteran’s current OSA was due to his aging and significant weight gain since active duty. The examiner indicated that given all the available evidence, it was less likely than not that the Veteran’s current OSA had been incurred in service. After considering the record in its entirety, the Board finds that the preponderance of the evidence is against the claim of service connection for sleep apnea. As discussed above, OSA was not diagnosed in service. Rather, sleep apnea was not diagnosed until 1999, approximately five years after service separation. Moreover, the January 2020 VA examiner concluded that it was less likely than not that the current sleep apnea was incurred in service and there is no competent evidence to the contrary. The Board has considered the Veteran’s statements to the effect that he believes his current sleep apnea is the result of his active duty service. The Board finds the January 2020 examiner’s opinion highly probative. It was offered by a physician with the expertise necessary to provide an opinion in this matter. The opinion was based on a review of the Veteran’s medical records, considered his contentions, and the examiner provided a detailed rationale based on his training and experience as a clinician. The Board finds that the January 2020 examiner’s opinion is more probative than the Veteran’s theory on the etiology of his sleep apnea, as the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered the Veteran’s contentions to the effect that his sleep apnea had its inception during active duty as he developed sleep difficulties and fatigue while on active duty and reported difficulty sleeping and fatigue at retirement. As set forth above, however, the VA examiner specifically considered those reports and nonetheless explained that, given the overall evidence, it was less likely than not that the current sleep apnea was incurred in service. After considering and weighing the evidence of record, including the STRs, the post-service medical evidence, the January 2020 VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran’s claim of service connection for sleep apnea. Thus, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, 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.