Citation Nr: 21010612 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-27 957 DATE: February 25, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT Sleep apnea is not related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to October 1981. This appeal is before the Board of Veterans’ Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2018, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In an April 2018 decision, the Board denied the Veteran’s claim for sleep apnea The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated the denials in a June 2019 memorandum decision. In January 2020, the Board remanded the claim with instruction to obtain a VA examination in accordance with the Court’s instructions. In May 2020 a VA examiner issued a medical opinion. In September 2020 the Board found this opinion did not fulfill the instructions of the May 2020 remand and remanded for another opinion. An additional opinion was obtained in November 2020. The Board is therefore satisfied that the instructions in its remands of January 2020 and September 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea The Veteran claims service connection for sleep apnea. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). 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 claimant 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reflect any symptoms of or treatment for sleep apnea. No such abnormality was noted at the Veteran’s July 1981 separation examination, and in the accompanying report of medical history he explicitly denied having ever experienced frequent trouble sleeping. VA treatment records reflect that in July 2005 the Veteran reported sleep issues to his mental health provider, who, based on his obesity and loud snoring, suggested he be tested for sleep apnea. A February 2006 sleep study confirmed his diagnosis. Records reflect ongoing treatment without discussion of any relationship to service. In his November 2011 notice of disagreement, the Veteran stated that although his sleep apnea did not appear in the medical record until 1984, his symptoms began in service. He stated that it was caused by all the sleepless nights in the field pulling duty, driving long hours, and doing night missions. At his January 2018 hearing, the Veteran stated that in service he got a little sleep for a lot of work, and when he did sleep, he would snore. He stated that his first wife and his current wife both told him that he periodically was not breathing in the middle of the night. His current wife testified to that effect. He stated that he has a current diagnosis of sleep apnea and uses a CPAP machine. In a May 2020 medical opinion, a VA examiner opined that sleep apnea was less likely than not related to service. This opinion was based on the rationale that there was no indication that the Veteran had sleep apnea while on active duty. In a November 2020 medical opinion, a VA examiner opined that sleep apnea was less likely than not related to sleepless nights in the field during service. This opinion was based on the rationale that obstructive sleep apnea is not characterized by sleepless nights, and snoring is a sign that is not pathognomonic with obstructive sleep apnea. The examiner explained that the Veteran left service weighing 245 pounds, then lost a significant amount of weight due to Crohn’s disease in 1994. There was no documentation of sleep apnea at that time. By 2005, his weight increased to 322, and by the time he was diagnosed with sleep apnea he weighed 370. The examiner stated that is very unlikely that sleep apnea had its onset in service, but rather it likely occurred after the significant increase in weight from separation to diagnosis. The Board finds that the evidence weighs against a finding that sleep apnea is related to service. There is no indication in his service treatment records that sleep apnea arose in service. While the Veteran states that he snored in service, he does explain how he became aware of something that occurred while he was unconscious. There are no statements from those who witnessed him sleeping in service of record. Furthermore, as explained in the November 2020 VA medical opinion, snoring is a sign that is not pathognomonic with obstructive sleep apnea. The Veteran also argues that his irregular sleep patterns during service caused his subsequent sleep apnea. There is no evidence in the record, however, of any medical link between irregular sleep patterns and the development of sleep apnea, and the Veteran has not provided any basis of knowledge for asserting such a relationship. The November 2020 VA examiner gave a probative opinion explaining that sleep apnea is not caused by irregular sleep patterns but is very likely the result of the Veteran’s significant weight gain after separation from service. There is no medical evidence to contradict the VA examiners’ opinions. For these reasons, the Board finds that the evidence weighs against a finding that sleep apnea is related to service, and service connection is therefore denied. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.