Citation Nr: 21023293 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-54 966 DATE: April 20, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The weight of the probative evidence is against finding that the Veteran’s obstructive sleep apnea was incurred in service or is otherwise related to disease or injury in service. CONCLUSION OF LAW The criteria for service connection for obstructive 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 on active duty from February 1982 to June 2002. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. In that rating decision the RO denied, in pertinent part, entitlement to service connection for OSA. The Veteran submitted a notice of disagreement (NOD) in October 2013. The RO issued a statement of the case (SOC) in September 2017, and the Veteran’s VA Form 9 was received in October 2017. In January 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In April 2020, the Board remanded the case for further development and adjudicative action. Notably, the present claim was previously remanded along with claims for service connection for low back pain and for a right ankle disability. Before the case was returned to the Board, the RO granted entitlement to service connection for low back pain and for a right ankle disability in an October 2020 rating decision. That rating decision constituted a full grant of the benefits sought on appeal as to each issue, and as so, those issues are no longer before the Board or in appellate status. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Entitlement to service connection for obstructive sleep apnea The Veteran contends that he has obstructive sleep apnea (OSA) that is related to service. Initially, the Veteran has a current diagnosis of OSA. See private polysomnogram report dated April 2011; see also October 2012 private examination report (prepared using a VA Disability Benefits Questionnaire (DBQ)). As so, the dispositive issue in this case is whether the OSA is related to service. Service Treatment records (STRs) are silent for any complaints, treatment, or diagnosis of OSA or any sleep problems. The Veteran was first diagnosed with sleep apnea in April 2011. See April 2011 private polysomnogram report (diagnosis of moderate obstructive sleep apnea); see also October 2012 private examination report. The treating physician noted a history of snoring, hypertension, daytime fatigue, and witnessed sleep apnea. In a July 2013 Statement in Support of Claim, the Veteran reported “[I was] snoring and showing all the symptoms of sleep apnea years before I retired from the military.” A notarized lay statement from the Veteran’s former wife was received in June 2016. In the lay statement, the Veteran’s former wife reported that she was married to the Veteran from 1988 until 2010. She also reported that that throughout the marriage, including during active service, the Veteran snored loudly and would stop breathing throughout the night while sleeping The Veteran had a VA sleep apnea examination in September 2020. The examiner reviewed the Veteran’s claims file, including the STRs, private treatment records, and VA treatment records. The examiner opined that the OSA was less likely than not incurred in or caused by service. In so finding, the examiner cited that the pertinent records lacked evidence to support that the condition occurred while in service. STRs are silent for any indication of the OSA. The examiner acknowledged the Veteran’s former wife’s report of a history of snoring. The examiner noted that other than the former wife’s statements of snoring, “[r]ecords indicated lack of evidence to support that the [OSA] did occur while in service.” The examiner cited the April 2011 diagnosis, as well as treatment in 2011 for headaches. The examiner found it “reasonable to believe that [the Veteran] had mild sleep apnea prior to having moderate sleep apnea (as was diagnosed in April 2011) but it is not evident that the [Veteran] was symptomatic other than snoring . . . .” The examiner noted that the Veteran “does not report any functional impairment related to sleep apnea during service or shortly after separation. The condition noted on today’s exam appear[ed] many years after the Veteran was in service.” The September 2020 examiner considered the medical records and conducted an in-person interview. The examiner considered the lay statements offered by the Veteran’s wife concerning snoring during service. The examiner then provided a clear and articulate rationale which was based on an accurate reading of the evidence in the record and the examiner’s medical expertise and knowledge. As so, the opinion carries significant probative value. Moreover, there is no competent medical evidence to contradict this opinion or otherwise diminish its probative value. Although the Veteran sincerely believes that his OSA had its onset during service, the record does not show that the Veteran has the requisite medical expertise to provide such an opinion, because the issue regarding the onset of sleep apnea is complex in nature and requires specialized medical expertise, training, and skills. While the Veteran and his prior spouse are competent to report observable symptoms suggestive of OSA such as snoring, during and since service, they are not competent to diagnose OSA or determine that his symptoms were, in fact, prodromal manifestations of the later-diagnosed OSA. This issue is medically complex, especially because a diagnosis of OSA usually requires specialized medical knowledge and a sleep study requiring interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner in this case considered those observable symptoms and opined that they were not manifestations of OSA during service. Given the nature of the disability in question, greater weight is afforded to the medical findings over the Veteran’s lay assertions. In light of the foregoing, the preponderance of the probative evidence in the record is against a finding that there is a nexus between the OSA and service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve, and the claim is denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.