Citation Nr: 21010884 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-23 094 DATE: February 26, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's claimed sleep apnea is not causally or etiologically related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1988 to June 1988 and from February 1991 to April 1991. The Veteran had additional Army Reserve service from July 1987 to December 2009, with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in June 2015 at a videoconference hearing before the undersigned Veterans Law Judge. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within 1 year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sleep apnea is not listed among the diseases for which the presumption of service connection for certain chronic diseases, and 38 C.F.R. § 3.303(b) does not apply. Before becoming entitled to status as a claimant for VA benefits with respect to a given period of service, an appellant must first demonstrate by a preponderance of the evidence (1) that he or she is a "veteran," or (2) "veteran" status for the person upon whose military service the claim for VA benefits is predicated during that period. Laruan v. West, 11 Vet. App. 80, 84-86 (1998). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). The term "active military, naval, or air service" includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). If there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection sleep apnea The Veteran contends that he has sleep apnea related to his active duty service. The Veteran submitted a private medical record that confirms a diagnosis of sleep apnea from May 2000. Thus, the question before the Board is whether his sleep apnea began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are negative for any complaints, treatment, diagnosis or other findings related to a sleep apnea disorder. The Veteran’s service treatment records reveal multiple Reports of Medical History from April 1991, May 1996, January 2001, and November 2002. The Veteran checked no to frequent trouble sleeping on all of the documents. On a December 2003 Initial Medical Review-Annual Medical Certificate, the Veteran listed multiple medical problems, but sleep apnea was not listed. There are also no line of duty investigations during the Veteran’s Army Reserve service that might substantiate the incurrence of sleep apnea in the line of duty during a period of ACDUTRA or INACDUTRA. The Veteran and his wife testified during the June 2015 hearing. The Veteran’s wife stated that the Veteran began snoring around 1998 or 1999. She also testified that she was unable to get any rest due to the Veteran snoring. The Veteran testified that around the year 2000, he was diagnosed with sleep apnea. The Veteran stated that he has tried changing sleep positions and uses a continuous positive airway pressure therapy (CPAP). The Veteran was afforded a VA examination in July 2016. The examiner reported on the Veteran’s history of sleep apnea. The onset of sleep apnea was noted in 2000 after snoring on annual drill, and the Veteran had a current symptoms of sleep apnea. The examiner found that the Veteran’s sleep apnea did not have a functional impact on his ability to work. The examiner ultimately opined that the Veteran’s claimed sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. This case was remanded by the Board in October 2018. The Board found that the July 2016 examiner failed to address the Veteran’s and his wife’s lay statements. The Veteran was afforded a VA examination in July 2019. The examiner noted that the Veteran reported that his condition began with years of snoring, restless sleep, excessive daytime sleepiness, and fatigue. The examiner also noted the sleep study in May 2000 that led to the Veteran’s diagnosis and a second sleep study in February 2016. The examiner found that the Veteran’s sleep apnea did not have a functional impact on his ability to work. The examiner opined that it was less likely than not that the Veteran's current sleep apnea is related to service. The examiner noted that there were no medical records showing diagnosis or treatment for the sleep apnea condition during active duty. The examiner stated that snoring is one of the many symptoms of sleep apnea, but it is not a contributing factor or a cause of sleep apnea or definitely associated to sleep apnea. The Board remanded this case in May 2020 for an addendum opinion due to the failure of the previous examiner to review lay statements from the Veteran or his wife. The July 2020 VA examiner reviewed the history as detailed by the medical records. The examiner reviewed the lay statements of record and found that both the Veteran and his wife stated that these symptoms occurred during the Veteran's time in reserves (approximately 7th year in reserve), rather than during active service. The examiner stated that there is no evidence of symptoms or evaluation for sleep apnea during the Veteran's active service time period. The examiner ultimately opined that the claimed sleep apnea condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The Board has considered the Veteran and his wife’s assertions. Both the Veteran and his wife contend that his sleep apnea is related to service, but they lack the medical training and credentials necessary to establish an etiological link between the Veteran’s service and a sleep apnea disorder many years after his last period of active service. A diagnosis of sleep apnea is made based upon laboratory studies and is not based upon lay observation, such as is the case with tinnitus or headaches. The lay assertions in this regard do not constitute competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In light of these findings, the Board concludes that service connection for sleep apnea is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.