Citation Nr: 21020964 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-21 699 DATE: April 8, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s currently-diagnosed sleep apnea had its onset in or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1980 to March 2000. In December 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran has contended that his currently-diagnosed sleep apnea had its onset in or is otherwise related to his active service, specifically to include snoring that he experienced in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the Veteran’s service treatment records (STRs) contained no complaints, symptoms, treatment, or diagnosis of sleep apnea or any sleep-related condition. In a September 1993 report of medical history, the Veteran specifically denied frequent trouble sleeping. At separation in January 2000, the Veteran again stated on a report of medical history that he did not have frequent trouble sleeping. Post-service, at VA appointments in October 2001 and January 2002, the Veteran was asked if he had trouble sleeping. He stated that he did not. In December 2002, he reported to VA clinicians that “recently” he had been feeling tired and sleepy. A follow-up appointment was planned but not conducted. In July 2014, the Veteran underwent a private sleep study which resulted in a diagnosis of mild obstructive sleep apnea. A treating clinician submitted a sleep apnea Disability Benefits Questionnaire (DBQ) in January 2016. The clinician stated that the Veteran reported a history of relevant symptoms for approximately 10 years or more. No opinion on etiology was provided. At the December 2020 hearing, the Veteran testified that in approximately 1995, his wife noticed his snoring at night and would wake him up to roll over. He did not seek any treatment at the time as he was unaware of sleep apnea and believed his snoring was just a part of life. The Veteran noted that he was first diagnosed in 2014. His wife also underwent a sleep study due to snoring, but she was not diagnosed with sleep apnea. He described current symptoms of snoring, daytime sleepiness, irritability, morning headaches, and mood swings and that his current treatment included use of a CPAP machine. The Veteran indicated the desire to submit lay statements from his wife and/or a fellow servicemember attesting to the onset of his symptoms. No additional statements were submitted. Service connection for sleep apnea is denied. Based on the foregoing, the Board finds that service connection for sleep apnea is not warranted. There is no medical evidence of sleep apnea or related symptoms until after discharge from active service, but the Veteran has contended that snoring he experienced in service is related to his currently-diagnosed sleep apnea. Although the Veteran is competent to describe symptoms he experienced, he has not been shown to have the medical expertise and training necessary to diagnose a complex condition such as sleep apnea. Further, snoring does not, on its own, indicate a diagnosis of sleep apnea. Indeed, as noted by the Veteran himself, his wife also snored and was tested for the condition but did not have sleep apnea. Contemporaneous medical records did not reflect any relevant symptomology and at separation, the Veteran himself denied trouble sleeping. He denied difficulty sleeping post-service, as well. In December 2002, he first noted that he was feeling tired and sleepy but that this was only a recent phenomenon. Although the Board notes that the Veteran was unaware that sleep apnea was a condition that one could have during service and shortly thereafter, he denied relevant symptomology to treating clinicians at the time. The Board finds this contemporaneous medical evidence based on the Veteran’s own reported symptoms to carry more probative weight than his statements made many years after discharge in connection with a claim for VA monetary benefits. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s currently-diagnosed sleep apnea had its onset in or is otherwise related to active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. The Board recognizes that the Veteran has not been afforded a VA examination based on his claim. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, there is no evidence establishing that the condition occurred in service. The only indication that sleep apnea may be associated with service has been put forward by the Veteran who does not have the requisite medical expertise necessary to determine the etiology of a complex condition. As such, the low threshold to necessitate affording a VA examination has not been met. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.