Citation Nr: 21011586 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-35 195 DATE: March 2, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea disorder is not etiologically related to his service and is not a medically unexplained chronic multi-symptom disease. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1979 to July 1987 and from August 1987 to May 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The Veteran filed an original claim for disability benefits for his sleep apnea condition in February 2016. The RO denied the claim, citing that the Veteran’s sleep apnea neither occurred in nor was caused by service. Subsequently, the Veteran filed a Notice of Disagreement, and appealed the RO’s decision to the Board. The Board denied the Veteran’s claim in a June 2019 decision. The Veteran subsequently appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court), which remanded the matter back to the Board in a June 2020 Joint Motion for Remand. The matter has now returned before the Board for adjudication. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea is the result of his service. Presumptive Service Connection under 38 C.F.R. § 3.317 Veterans with service in the Southwest Asia theater of operations during the Persian Gulf Era may establish service connection on a presumptive basis for certain qualifying chronic disabilities becoming manifest during active duty or manifesting to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The term “qualifying chronic disability” can mean either (1) an undiagnosed illness; or (2) a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317 (a)(2)(i). In the case of claims based on illness under 38 U.S.C. § 1117, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The term “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. An illness is a MUCMI where either the etiology or the pathophysiology of the illness is inconclusive. A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology are partially understood. Stewart v. Wilkie, No. 15-4458, 2018 U.S. App. Vet. Claims LEXIS 1685. The Veteran’s condition is not an “undiagnosed illness”, being that it was diagnosed in February 2016. Therefore, in order to meet the definition of a “qualifying chronic disability” and meet the criteria for 38 C.F.R. § 3.317, the Veteran’s condition must qualify as a MUCMI. In connection with his claim, the Veteran was provided two VA examinations, in April 2017 and January 2019. The January 2019 VA examiner provided a medical opinion and rationale opining on the etiology and pathophysiology of the Veteran’s sleep apnea. The examiner stated that snoring and apnea often occurred in the absence of obstructive sleep apnea, and the mere presence of snoring and apnea in service is not diagnostic of OSA in service. The examiner offered alternate possible etiologies of the Veteran’s condition and demonstrated that OSA is a well-understood condition with known symptomatology and etiologies. The Board acknowledges the Veteran’s argument that his symptoms of daytime hypersomnolence, snoring, cessation of breathing, choking, gasping for breath, headaches, irritability, and poor mood may qualify as “sleep disturbances”, “fatigue” and other such symptomatology contemplated under the 38 C.F.R. § 3.317 (a)(2)(i) provisions for MUCMIs. However, upon a review of the evidence, the Board finds that the Veteran’s condition does not qualify as a MUCMI. The VA examiner’s opinions of April 2017 and January 2019 clarify the etiology and pathophysiology of the Veteran’s condition. A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology are partially understood. Stewart. Accordingly, service connection may not be granted on a presumptive basis under 38 C.F.R. § 3.317, as the Veteran’s condition does not qualify as a MUCMI. As such, the Board finds that the Veteran’s sleep apnea condition does not qualify as a MUCMI for purposes of 38 C.F.R. § 3.317. The examination of April 2017 provides a detailed rationale explaining the various possible etiologies of OSA, as well as the pathophysiology of the condition, including its progression and associated symptoms. The January 2019 examination expanded on this rationale and additionally addressed lay evidence provided in support of the Veteran’s claim. The rationales show that OSA is not a MUCMI, and rather it has clearly understood etiologies and pathophysiology. Accordingly, the presumptive service connection provisions for Gulf War Veterans provided under 38 C.F.R. § 3.317 are not for application in this matter. Presumptive Service Connection under 38 C.F.R. §§ 3.307, 3.309 The Board has also considered whether the provisions of 38 C.F.R. §§ 3.307, 3.309 for establishing service connection on a presumptive basis apply. However, those provisions do not apply in the instant matter as the Veteran’s condition has not been shown to be chronic in service nor is it one of the “chronic diseases” contemplated under 38 C.F.R. § 3.309. Direct Service Connection The Board moves then to determine whether service connection for sleep apnea may be warranted on a direct basis. 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 may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The first element for direct service connection is met, as the Veteran has a diagnosis for OSA from February 2016. In regard to the second element of service connection, an in-service incurrence, the Veteran asserts that he had snored loudly since his time in the U.S. Navy, but he did not seek treatment because he didn’t find it to be a problem at that time. The Veteran also contends that his snoring was so intense during his time in service that it would annoy his bunkmates and cause him to be fatigued throughout the day. However, the record is silent for negative performance records or evaluations that denote the Veteran’s impairment. Further, the Board notes that the Veteran’s separation examination in 1999 did not show any sleep-related problems or any attendant symptoms. STRs are entirely silent for any treatment, complaints, or diagnoses relating to OSA during the Veteran’s time in service. The Veteran’s separation examination of 1999 is silent for sleep issues or any related symptoms. The April 2017 examiner opined that the Veteran’s OSA was less likely than not incurred from the identified in-service event (snoring during sleep while in-service). The examiner then explained that there are many possible etiologies of snoring, including mouth anatomy, alcohol use, nasal conditions, sleep position, sleep deprivation, and obstructive sleep apnea. The examiner further stated that snoring was not exclusively a symptom of sleep apnea, and did not confirm the existence of sleep apnea. The examiner then opined that “obstructive sleep apnea is a condition where the airway actually closes off and there is no airflow. In this case, there is cessation of snoring and thus witnessed apnea. If the sleep apnea did occur through the entire career of the Veteran and it was reflective of an undiagnosed sleep apnea, there would’ve been other associated condition after years of service such as hypertension, heart disease, and cor pulmonale, especially if it was not related. This was not evident in the provided evidence.” The Veteran did not report snoring until January 2016 and was diagnosed with obstructive sleep apnea the following month in February 2016, more than 16 years after his separation from service. The Veteran’s weight had increased by 20 pounds in the intervening years between separation from service and diagnosis of his condition. The examiner concluded by opining that while snoring may have existed during service, there was not enough objective evidence to link the Veteran’s snoring to sleep apnea, and therefore it is less likely than not that the Veteran’s sleep apnea was incurred from his reported snoring in service. Subsequently, at the Veteran’s January 2019 VA examination, the examiner provided an addendum opinion expanding on the analysis from the April 2017 opinion and taking into account lay statements provided in support of the Veteran’s claim. The examiner opined that it was normal for snoring and apneic episodes to occur without the existence of OSA, and that the mere presence of snoring occurring in service did not conclusively prove the existence of OSA in service. Regarding the lay evidence in support of the Veteran’s claim, the examiner opined that although the Veteran’s wife and brother witnessed the Veteran snoring while in service, this too did not conclusively establish that the Veteran was afflicted with OSA at that time, for the same reason provided before – that the incidence of snoring did not equate to OSA. As stated previously, the Veteran has submitted lay statements from his former wife, wife, and brother describing the Veteran’s loud snoring and abnormal breathing. This lay evidence was properly considered upon VA examination, with the opinion and rationale offered that snoring and abnormal breathing are not necessarily indicative of OSA, and even less indicative of OSA diagnosed 16 years after the fact. Additionally, the statement from the Veteran’s current wife is even less probative in regard to determining in-service incurrence because she was not present to witness his in-service snoring, having married the Veteran years after his separation from service. With specific regard to the lay evidence, the Board notes that it has properly considered the lay assertions of record and given them their due weight. Laypersons, to include the Veteran, his former wife, and brother, are competent to report observable symptoms, such as awakening in the middle of the night and struggling to breathe. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability”); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. While the Veteran, his former wife, and brother are competent to report observable symptoms such as snoring, they are not competent is competent to provide a diagnosis in this case or to determine that these symptoms are somehow related to the Veteran’s active service. This issue of diagnosing a sleep apnea is medically complex, as it requires specialized medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. The medical evidence of record establishes that the Veteran’s OSA disorder was first diagnosed in February 2016 and does not establish that the Veteran’s condition began in or was incurred during his service, some 16 years prior to the 2016 diagnosis. The fact that the Veteran did not seek treatment for snoring or apnea-related symptoms during his service or in the subsequent 16 years also tends to weigh against his claim. To be sure, the lay reports of the Veteran’s snoring in service cannot be determined not credible merely because there are unaccompanied by contemporaneous medical evidence; Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the present matter, the Veteran did not complain of snoring, nor seek treatment for it until January 2016, more than 16 years after separation from service. The Board acknowledges that the Veteran has provided fear of causing trouble as a reason for not seeking treatment during service, but this does not explain his not seeking treatment in the years between 1999 and 2016. The record shows the Veteran seeking treatment and being tested and treated for bilateral hearing loss, tinnitus, and musculoskeletal conditions through the years after 1999, at the VA Medical Center in Honolulu, Hawaii. However, the record does not show the Veteran seeking treatment for sleep apnea in those years. In sum, the Board finds that the Veteran has not established entitlement to service connection to an evidentiary degree of equipoise or greater. The lay statements in support of the Veteran’s claim simply support the incidence of snoring in service, which is not necessarily indicative of or even necessarily etiologically related to OSA. The lay statements are also not competent to diagnose OSA or opine on its etiology. Further, as stated previously, the Veteran’s lack of seeking treatment, while not determinative, tends to weigh against his claim. Finally, the most recent VA examination opines that the Veteran’s condition is less likely than not related to his service, and that a medical nexus could not be established. The Board finds the VA medical opinion evidence to be adequate as it is predicated on an accurate reading of the service treatment records as well as the medical records contained in the Veteran’s claims file. The examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Additionally, the exams provide opinions supported by clear rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board lends great probative weight to the VA medical opinion of record. To be sure, the Board notes that service connection may still be established for conditions first identified after service. 38 C.F.R. § 3.303(d) (2019). The absence of service treatment records showing in-service evidence of OSA is not fatal to the Veteran’s claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current disability, and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, in the instant matter, the record does not contain sound medical evidence supporting a link between the Veteran’s disability and his service. As such, the Hensley holding is not for application here. Upon a thorough review of the record, the Board finds that the Veteran has not established entitlement to service connection for his condition. The record does not establish an in-service incurrence of the Veteran’s condition. Additionally, the probative medical opinions on record do not support a nexus between the Veteran’s condition and his military service. The entire evidence of record fails to establish the second and third elements of direct service connection, to at least a degree of equipoise. The benefit of the doubt doctrine is not applicable in the instant claim because the preponderance of evidence rests against the Veteran's claim for service connection for obstructive sleep apnea. Accordingly, the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.