Citation Nr: 21008075 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-38 547 DATE: February 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to October 1970. This case comes to the Board of Veterans’ Appeals (Board) on appeal from am August 2012 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO). The matter was previously remanded by the Board in September 2018 for a VA examination. It has returned for adjudication. 1. Entitlement to service connection for obstructive sleep apnea. The Veteran contends that his current diagnosis of obstructive sleep apnea is related to his time in service. 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. Entitlement to service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus 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 has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Here, post-treatment records show the Veteran was diagnosed with obstructive sleep in 2009 decades after his separation from service. The Veteran reports having trouble sleeping beginning in service while overseas and has provided lay opinions from his brother and wife indicating a history of snoring and trouble sleeping from his time in service until the present. In a March 2015 lay statement, the Veteran’s brother stated that the Veteran did not have trouble sleeping prior to service, but there was a change in his sleep pattern upon his return. Symptoms the Veteran’s brother witnessed included a change in the Veteran’s sleep pattern, loud snoring, and issues breathing while sleeping. An August 2011 lay statement from the Veteran’s wife notes they were married in 1969 and that for as long as she could remember he had sleep apnea, erratic breathing, and periods of stopped breathing. However, when the Veteran underwent a new patient assessment in January 2004, his wife reported that he snored but that she never notices any apnea. It was also noted at that time that the Veteran reported that he felt rested in the morning, and that he never falls asleep when driving. He did not feel he had sleep apnea. See May 2016 CAPRI records. The above inconsistencies compels the Board to question the credibility of the more recent reports from the Veteran and his family members that he has had problems with sleep since service. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). To be clear, the Board is not questioning honesty or moral character of the Veteran or his wife or brother. They are all attempting to recollect events that transpired some time ago and the passage of time, along with the inconsistencies noted above, compels the conclusion that they are not an accurate historians as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign them significant probative weight. Id. Further, to the extent that the Veteran, his brother, and his wife are competent to report having experienced or witnessed symptoms of snoring and trouble sleeping, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of obstructive sleep apnea. The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although the Veteran contends that his current obstructive sleep apnea is related to service, he has presented no medical evidence linking his current diagnosis to his time on active duty. He has likewise presented no evidence that his obstructive sleep apnea is related to any specific in-service injury, event, or disease. As noted above, the neither Veteran or his wife or brother is competent to provide a nexus opinion regarding this issue. The Veteran was afforded a VA examination in August 2019 to evaluate the nature and etiology of his currently diagnosed obstructive sleep apnea. In the opinion of the VA examiner it is less likely than not that the Veteran’s currently diagnosed obstructive sleep apnea is etiologically related to his service. The VA examiner acknowledged the Veteran’s reports of trouble sleeping during service. However, the examiner explained that lack of sleep or being unable to sleep due to work duties, possible insomnia, or worries does not constitute sleep apnea. The medical examiner also noted the Veteran was not diagnosed with sleep apnea until 2009 as further evidence that the sleep apnea is less likely than not related to the Veteran’s service. In the opinion of the examiner, it is more likely that the etiology of the Veteran’s sleep apnea is obesity as well as other risk factors like the Veteran’s age and gender. The Board finds the August 2019 VA examiner’s opinion to be the most probative with regard to the etiology of the Veteran’s sleep apnea. The examiner’s opinion is well supported by a detailed rationale and it is not contradicted by any medical evidence of record. In sum, the evidence does not establish that the Veteran’s currently diagnosed sleep apnea began in or is otherwise related to his active service. The preponderance of the evidence is against the Veteran’s claim, and as such it must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.