Citation Nr: 21020907 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-26 559 DATE: April 8, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran’s sleep apnea disorder was not shown in service or for many years thereafter and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for sleep apnea disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1975 to May 1996. In January 2020, the Veteran testified before the undersigned Veterans Law Judge at the Department of Veterans Affairs (VA), and a transcript of the hearing is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including psychoses, 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); See 38 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 disorder The Veteran asserts that his current diagnosis of sleep apnea is related to active duty service. After a review of the evidence, while the Veteran does have a current diagnosis of sleep apnea, the Board finds that service connection is not warranted. As an initial matter, the Veteran’s service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea while in service. Significantly, the Veteran’s reenlistment physical examinations failed to document any complaints of, or observed symptoms related sleep apnea or any other chronic sleep complaints. In fact, the post-service evidence does not reflect symptoms related to sleep apnea until approximately 2007, when he was diagnosed with sleep apnea after a sleep study was performed. Even though service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran’s claim that his sleep apnea is related to service. The Board has considered the Veteran’s, his wife’s, and fellow servicemen’s statements, particularly that he experienced symptoms related to sleep apnea since service. In this regard, while they are competent to diagnose a disorder such as sleep apnea, as this requires a special testing. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, the Board determines that the Veteran’s reported history of continued symptomatology since active service is not credible. Not only was sleep apnea not mentioned when he left service, on an occasion where he was specifically asked whether he experienced any such symptoms, his statements are also contradicted by his service treatment records where he denied any symptoms related to sleep apnea. Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, continuity is not established based on the clinical evidence of record. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorders to active duty service. At a VA examination in September 2020, after a detailed examination and review of the Veteran’s service treatment records and medical history, the examiner opined that the Veteran’s sleep apnea was less likely than not related to active service. In support, the examiner noted that there is no documentation of specific duties or exposures during service which are established etiologies of sleep apnea in the medical literature. This opinion is highly probative as it was rendered by a medical professional familiar with the Veteran’s record. In arriving at this conclusion, the Board has also considered the statements made by the Veteran, his fellow servicemen, and his wife relating his sleep apnea to his active service. The Federal Circuit has held that “[l]ay 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.3d 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 F.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 unsubstantiated statements regarding the claimed etiology of the Veteran’s sleep apnea are found to lack competency. In light of the above discussion, 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. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 D. Billinger, Associate Counsel