Citation Nr: 21014731 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-14 082 DATE: March 15, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT Obstructive sleep apnea was not manifest in active service and is not otherwise etiologically related to such service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from March 1993 to November 2014. The Board previously remanded this case for additional development in March 2019 and in July 2020. The matter has now returned to the Board for appellate review. Entitlement to service connection for obstructive sleep apnea The Veteran contends his current obstructive sleep apnea is related to his active military service. Specifically, he asserts that he suffered from sleep problems and snoring during his period of active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Turning to the record, the Veteran’s service treatment records reveal that prior to his retirement from active duty the Veteran complained of snoring, trouble sleeping, and daytime drowsiness. In May 2014, a sleep study was performed to determine if the Veteran had any sleep disorders. Although the Veteran complained of symptoms of sleep apnea, the May 2014 sleep study revealed that the Veteran had diagnoses of primary snoring and disrupted sleep. The Veteran was afforded a VA examination in connection with his claim in March 2015. At the time of the examination, the examiner found that the Veteran did not have a current diagnosis of obstructive sleep apnea. Additionally, the examiner confirmed that the sleep study performed in May 2014 found that the Veteran’s diagnoses were primary snoring and disrupted sleep. In January 2017, a private sleep study was performed. The private sleep study revealed a diagnosis of obstructive sleep apnea. However, the private examiner did not offer any opinions as to the etiology of the Veteran’s obstructive sleep apnea. Pursuant to the Board’s March 2019 remand, the Veteran was afforded another VA examination in October 2019. At the time of the examination, the examiner confirmed a current diagnosis of obstructive sleep apnea. The examiner noted that the Veteran developed snoring and daytime hypersomnolence while in the military. The examiner opined that the Veteran’s claimed obstructive sleep apnea was less likely than not incurred in or caused by the Veteran’s active military service. The examiner explained that the in-service sleep study performed prior to separation was negative for a finding of obstructive sleep apnea. Rather, snoring and disrupted sleep were diagnosed, and the Veteran was provided with a sleep machine and was advised to lose weight. The examiner noted that later in January 2017, a private sleep study revealed that the Veteran had a diagnosis of obstructive sleep apnea. In August 2020, another VA examination was conducted in connection with the Veteran’s claim. Again, the examiner found a current diagnosis of obstructive sleep apnea. The examiner opined that the Veteran’s claimed obstructive sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that obesity is the best documented risk factor for obstructive sleep apnea and the examiner noted that the Veteran’s weights have been without significant change since the initial sleep study in 2014 and the latest one in 2017. Additionally, the examiner found that the Veteran had a history of maxillary deficiency with elective correction in 1994. The examiner explained that the type of surgery performed on the Veteran is associated with obstructive sleep apnea. However, the examiner noted that the Veteran’s surgery was to correct difficulty biting and not due to obstructive sleep apnea. Further, the examiner remarked that the Veteran had a history of chronic sinusitis and that obstructive sleep apnea occurs twice as often in those who have consistent nasal congestion at night. However, despite the noted correlation, the examiner explained that there was no known direct causation of chronic nasal congestion causing obstructive sleep apnea. Also, the examiner remarked that the Veteran had a noted deviated septum, the repair of which the examiner explained would not be found to improve snoring. Consequently, the examiner the examiner found that the claimed sleep apnea was less likely than not incurred in or caused by the Veteran’s active military service. In light of the evidence as discussed above, the Board finds that there is no competent medical evidence or opinion of record to support the Veteran’s assertion that his currently diagnosed sleep apnea is etiologically related to his active service. Although the Veteran complained of sleep problems during his active service, the May 2014 sleep study performed during that time did not support that diagnosis. Rather, while in service, the Veteran was diagnosed with primary snoring and disrupted sleep. While the January 2017 private sleep study provided a current diagnosis of obstructive sleep apnea, the private examiner did not include any discussion on etiology or otherwise relate the Veteran’s disorder to his active service. Moreover, the August 2020 VA examiner pointed out that the most likely risk factor for obstructive sleep apnea is obesity and that the Veteran’s weight did not change significantly between May 2014 and January 2017. The Board acknowledges that the Veteran has claimed his obstructive sleep apnea is directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., fatigue; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran’s lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the more probative evidence supports a finding that the Veteran’s obstructive sleep apnea is not related to service. The Board thus finds that the claim must be denied.   In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable in the instant claim. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.