Citation Nr: 21015195 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-15 262 DATE: March 16, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea was not shown during active service and is not related to active 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, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from October 1985 to October 1988. This claim was previously before the Board in August 2019 and was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). CAVC granted a Joint Motion for Remand (JMR) in August 2020, vacating the Board’s decision and remanded the claim for further development. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for sleep apnea The Veteran is claiming entitlement to service connection for sleep apnea. A review of the evidence of record, the Board finds that service connection is not warranted. The Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea while in service. The Veteran's October 1988 separation exam was silent for sleep apnea or respiratory complaints. Additionally, the Veteran's separation physical examination failed to document any complaints of, or observed symptoms related to sleep apnea or any respiratory issues. In fact, the post-service evidence does not reflect symptoms related to a sleep disorder for many years after the Veteran left active duty service. In November 2009, the Veteran was first diagnosed with sleep apnea. The Board emphasizes that because the Veteran left active service in 1988, it was not until approximately 21years later that he was first diagnosed with a sleep disorder. Therefore, continuity is not established based on the clinical evidence. As part of this claim, the Board recognizes the statements regarding the Veteran's history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as sleep apnea, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board has taken special care to review the evidence on this question, as it has now been the subject of JMRs twice. Regardless of the assertions contained therein, the Board has not changed its conclusion that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless insufficient to warrant service connection. Specifically, the most recent JMR in August 2020, which somewhat echoes the prior JMR, faulted the Board’s prior decision it that the Board did not explain (a) why the denial of “respiratory symptoms or trouble sleeping” in an October 1988 physical examination was an “an express denial of snoring; and a lack of treatment for 50 years is significant in its determination, and (b) why failing to discuss sleep apnea in a prior claim that was adjudicated in a 2004 rating decision was probative to his credibility. The Board would respond that a credibility determination is not a legal determination. In evaluating whether an affiant’s testimony is genuine to the extent that benefits should be granted based on it (which is not an insignificant question), a trier-of-fact has an almost limitless array of factors that may be considered. Indeed, the Court has specifically recognized that even rather murky factors such as a veteran’s demeanor at a hearing might be sufficient enough to reject uncorroborated assertions. See Caluza v. Brown, 7 Vet. App. 498 (1995). Contrary to what the JMR implies, there could never be a universal legal “foundation” in a credibility analysis, as it should be obvious that what testimony is deemed “credible” can vary depending upon the trier-of-fact, and what is considered reasonable in the situation based on his or her own experience. Unless, of course, the underlying argument of the JMR is that human beings should be taken out of the analysis altogether. Here, the Board reserves the prerogative as trier-of-fact to first determine that a failure to seek treatment for approximately 21 years after active duty is a significant amount of time that cannot be merely attributed to reasonable explanations such as the lack of available medical care. This is especially the case where, as here, the Veteran routinely visited doctors, but made no mention of sleep apnea. Moreover, as was mentioned in previous decisions, it should make intuitive sense that, if a veteran had the wherewithal to submit a prior claim for benefits, as this Veteran did in March 2003, it would not make sense to consciously omit one disorder, despite experiencing contemporary symptoms. Next, regarding his statements at his separation examination in October 1988, the Veteran was specifically asked whether he experienced any respiratory symptoms or trouble sleeping. He denied both symptoms. While the JMR argues that “sleep apnea” is not the precisely same as “respiratory symptoms or trouble sleeping” (although there was not a box to check that better characterized sleep apnea), the precise language is not the point. The point is that this was an occasion where the Veteran was specifically asked when he left the military if he had any symptoms he would like to discuss, and he made no mention of snoring or sleep apnea. This is particularly so in this instance, where the Veteran mentioned a number of other disorders at that time, which would indicate that he sought to be thorough. Finally, the JMR found that the Board was not qualified to differentiate between “snoring” and “sleep apnea,” and it is true that the Board is precluded from making its own medical conclusions, see Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, while due respect should be given to the determinations and opinions rendered by trained medical professionals, the Board does not view Colvin to be so comprehensive so as to require a medical professional to differentiate between a term such as “sleep apnea,” which is a diagnosable clinical condition defined as "transient periods of cessation of breathing during sleep,” Dorland's Illustrated Medical Dictionary 117 (32nd ed. 2012), and snoring, which a non-clinical term that may or may not be indictive of sleep apnea. Indeed, the Board is not aware of any time where the Court has held to the contrary, or has otherwise held that similar terms such as “sneezing,” “coughing,” or “hiccups” require a medical professional to define. To be clear, none of these factors alone might be sufficient to discredit the Veteran’s statements. However, the Board’s role, as trier-of fact, is to consider these factors in their entirety, and they cannot be easily waived away in a JMR when faced with the very substantial question of whether benefits should be granted based solely on bare assertions that are otherwise unsupported by the record. In the Board’s view, these unsubstantiated assertions by the Veteran need to be more airtight. Therefore, continuity is not established based on the clinical evidence of record or the Veteran’s statements. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty or a service-connected disability, despite his contentions to the contrary. The Veteran underwent a sleep study at the VA Medical Center in November 2009 and was diagnosed with obstructive sleep apnea. In a 2013 opinion, the Veteran's private physician opined that it was more likely than not that the Veteran's sleep apnea was present in 1986. The Veteran's private physician opined in 2016 that it was quite plausible that increased steroid use could have caused weight gain and hence obstructive sleep apnea that was present, but not diagnosed, until a sleep study was performed in March 2008. The Veteran's psychiatrist provided an opinion in October 2017 concurring with the 2016 opinion that treatment with steroids caused the Veteran's weight gain and its residual effects that significantly contribute to his persistent sleep apnea. However, the private physicians did not provide an explanation or medical evidence on how the Veteran's use of steroids after his motor vehicle accidents caused weight gain which led to his sleep apnea. On the other hand, at a September 2014 VA examination, the examiner opined that it was less likely than not that the Veteran's sleep apnea was related to his service connected back condition. The examiner noted that the Veteran's service treatment records did not show visits to sick call for any symptoms related to sleep apnea or respiratory issues. The examiner stated that no actual event or experience occurred in-service could have caused sleep apnea. Additionally, the examiner opined that there is no proof that it was caused by the use of steroids as sleep apnea is more common in people that are overweight. The examiner noted that the Veteran's exit examination documented a weight gain of 25 pounds over an 18-month period, however the Veteran's discharge examination was absent for any respiratory issues or musculoskeletal conditions which he could attribute weight gain due to an injury. The Board is persuaded by the VA examiner's logic that the Veteran's sleep apnea was not result of an injury or condition that occurred while in-service. The VA examiner's opinion was based on a full review of the claims file and examination of the Veteran, while it is unclear which records were reviewed by the Veteran's treating physicians. Furthermore, the Veteran did not seek treatment and was not diagnosed with sleep apnea until 2009, which was 21 years after discharge. The Board has also considered the statements made by the Veteran and his spouse relating his sleep apnea to his active service. The Veteran contends that his use of prescribed steroids after his motor vehicle accidents in 1986 and 1989 were the cause of his weight gain that led to sleep apnea. The Federal Circuit has held that "lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3.d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his sleep apnea. See Jandreau, 492 V.3d at 1377, n.4. Because sleep apnea is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's statements regarding the etiology of his sleep apnea are found to lack competency. Therefore, after a careful review of the entire record, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica