Citation Nr: 21024680 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 12-11 521A DATE: April 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for depression to include as secondary to hepatitis C is remanded. FINDING OF FACT The preponderance of the competent evidence of record is against a finding that the Veteran’s OSA is related to the Veteran’s active duty service. CONCLUSION OF LAW The criteria for service connection for OSA, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Army from August 1977 to August 1983. This matter is on appeal from a February 2011 rating decision. The Veteran was afforded a June 2015 hearing before the undersigned Judge. A transcript of the hearing has been associated with the record. The Board remanded this appeal in August 2015 for additional development. Service Connection Service connection is granted on a direct basis when there is 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. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Obstructive sleep apnea (OSA) The Veteran contends that their sleep apnea is related to their active duty service. Review of the medical treatment record shows in a June 1994 sleep study, the Veteran was given an impression of mild OSA. A November 2009 sleep study diagnosed the Veteran with OSA. The Veteran’s treatment record shows complaints and treatment for sleep issues with notations of a current problem for sleep apnea. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s service treatment records (STRs) do not show complaints, treatments, or diagnosis for sleep apnea. At the Veteran’s September 1982 separation examination, the Veteran denied trouble sleeping. Review of the Veteran’s military personnel record shows in a July 1982 commander’s recommendation to bar the Veteran’s reenlistment, the officer noted in the Veteran’s list of misconduct, the Veteran in May 1982 was found to be sleeping on duty. The Veteran in a separate July 1982 statement addressing the allegations stated his admission on sleeping on duty and asserted that he was “not fully aware of the situational or circumstances at the time.” In a November 1992 Social Security Administration (SSA) disability report, the Veteran reported that “many times I fall asleep while doing things.” The Veteran stated that he stopped working in February 1991 due to symptoms causing him to oversleep, become late or miss work, and resulted in his job termination. In a March 1993 SSA disability report, the Veteran complained of falling asleep easily and that this was a problem since 1985 but later added “also while in the service.” The Veteran stated that all he has to do is “think sleep” to fall asleep and that he lost his last job because he was sleeping on the job. The Veteran described that his sleep was not sudden but more of a gradual onset of sleep; the Veteran stated that he was told that he had a “habitual problem.” In a March 1994 medical record with respiratory services, the Veteran complained of daytime somnolence with a report of two motor vehicle accidents occurring “after-dark” due to a “failure of alertness.” The Veteran stated that he would fall asleep “willy-nilly” if he was comfortable. The Veteran stated that his sleeping hours were inconsistent due to not working and the times he would go to bad ranged from as early as 9:30 PM to as late as 3:00 AM. The Veteran stated that he naps during the day and would still be sleepy many days. The Veteran reported this problem during the late 1970s but now was more an issue in the past 12 years. The Veteran stated that he was known in the Army as a “light switch” due to his ability on how quickly he was able to “turn off.” The Veteran’s wife whom he married 10 years ago noted the Veteran was a snorer but did not observe any instances of the Veteran breathing stopping while sleeping. A June 1994 medical letter found that review of the sleep study found an impression of mild OSA; the reviewing provider noted that it was “not clear why the Veteran has such significant sleepiness, but unlikely related to this degree of sleep-disordered breathing.” In a May 1995 SSA review, the reviewer noted the Veteran’s history of mild OSA was based upon EEG results and the Veteran’s daytime sleepiness is out of proportion to that which may be explained by this diagnosis at that time (June 1994)”, noting that while receiving treatment in the hospital in May 1995 for psychiatric treatment, the Veteran “did not exhibit this degree of daytime somnolence.” In a June 2007 visit to establish care with VA medical center (VAMC), the Veteran reported a 1990 diagnosis for sleep apnea. In a January 2009 private provider report, the Veteran stated that he had a sleep study with VA that showed OSA; however, the Veteran stated that he received no treatment and was later “getting the run around from VA in 2005” and not notified for a scheduled sleep study. In January 2010 the Veteran requested forms for Social Security and reported a main issue with daytime drowsiness. The treating provider noted the Veteran as non-complaint and that the Veteran was no shows to previously scheduled OSA evaluations or appointments. In an August 2010 statement, the Veteran stated that “I had sleep apnea” and did not pay attention to effects until it worsened as he got older. In the Veteran’s April 2012 form 9, the Veteran asserted “just because there were no records my ailments at the time of active duty, doesn’t mean I wasn’t affected at the time.” At the Veteran’s June 2015 hearing, the Veteran’s representative testified that the Veteran told him “numerous stories….one man called [the Veteran] light switch in the Army because [the Veteran] would all of a sudden just fall asleep just sitting at a desk…” The representative noted that this was anecdotal and “not saying that it’s some hard evidence, but right now, that’s the evidence that we have.” The Veteran testified that at the time he was young, energetic, athletic, and fresh out of college. The Veteran stated that having such a disorder, he did not pay attention to it or let it get in the way of his performance. The Veteran stated that he could “stand up and go to sleep like a horse…happen just that fast. I could be sitting here talking to you and all of a sudden…if you’re not watching me I can go to sleep on you.” The Veteran testified that he was never treated in service because he did not pay attention to it or let it affect him; but then the Veteran stated that “it did” affect him and as he became older it got worse. The Veteran stated that before he was assigned overseas, he fell asleep at the while driving home from work as a bar-back at the post, flipping his car three times. The Veteran stated that he has had numerous accidents because he has fallen asleep at the wheel. The Veteran stated that his former wife had accused him before of loud snoring, and that a nurse had told him that he was observed stopping his breath while sleeping. The Veteran was afforded an October 2015 VA medical opinion. The examiner found it was less likely than not that the Veteran’s sleep apnea was related to his service. The examiner stated that there was no evidence of symptoms of sleep apnea while in military service, with no evidence from “his Army buddies that he was a snorer.” The examiner noted the Veteran’s former wife identified the Veteran as a snorer but with no report of stopping breathing while sleeping and review of record noted the Veteran was “falling asleep” at work after his separation from service, but otherwise no indication of OSA in service. The Board acknowledges the Veteran’s statements that his sleep apnea was related to his military service. Certainly, the Veteran is competent to describe experiencing symptoms in service and recurring thereafter. Indeed, treatment records corroborate at least to some extent the Veteran’s history of symptoms. Nevertheless, as lay persons, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the October 2016 VA examiner considered the Veteran’s report of symptomatology thereafter. The examiner still found that it was unlikely that the Veteran’s reported sleep apnea were related to his active service. The Board finds that the Veteran’s opinion is outweighed by the competent opinions of the VA examiner. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). After review of the claims record, the Board finds the competent evidence on record is against a finding of service connection for sleep apnea. The Veteran’s STRs show no complaints, treatments or diagnoses for sleep apnea. Although a July 1982 officer report noted the Veteran was caught sleeping on duty in May 1982, there is no other reported incidents of sleeping on duty or complaints of the Veteran for sleeping difficulty or issues. The Veteran denied trouble sleeping at his September 1982 separation examination. The Veteran’s medical treatment record shows the Veteran complained of or received treatment relating to sleep apnea; however, the earliest documentation of record relating to a sleep apnea diagnosis was in June 1994, years after the Veteran’s separation from service. Although the Veteran testified in June 2015 that he was involved in a car accident during service where he fell asleep at the wheel after work and flipped his car three times, the Veteran has not provided records of this treatment to be associated with the record. The only probative medical opinion of record made by the October 2015 VA examiner considered the Veteran’s report of symptoms during intervening years but provided reasoned analysis of the case to support their opinion that the Veteran’s current sleep apnea was not related to or the Veteran’s active duty service. The Veteran has not submitted any other opinions to be weighed against the VA examiner’s opinion. As such, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s sleep apnea. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Board finds that remand is warranted for additional development. In an August 2015 Board decision, the Board remanded the appealed issues for hepatitis C and depression for additional development. Specifically, the Board requested opinions regarding the nature and etiology of the Veteran’s hepatitis C and depression. In an October 2015 VA examination, the examiner found it was less likely than not that the Veteran’s hepatitis C was related to service. The examiner found no evidence of exposure in the military; noting that if the Veteran’s reported pricks from needle sticks were significant, it would have been documented in the medical record; and considered the exposure to blood rags were only a risk if the Veteran had an open area exposed but even then found the chances of that occurring were low. The examiner noted the Veteran had risky behavior following separation from service to include drug use, alcohol abuse, and risky sexual behavior; the examiner noted the documentation of 2 motor vehicle accidents after separation were also possible exposure risks for hepatitis. The examiner stated that the Veteran was able to donate blood as reported in 1985 to 1986 and noted that screening for hepatitis did not begin until 1990. The examiner found no documented symptoms of hepatitis identified between separation from the military until the diagnosis of hepatitis in 1990. In March 2016, the Veteran submitted a statement that in 1980 he was transferred to a medical clinic and hospital where he asserted his duties resulted in exposure to “biological and environmental” hazards. In particular, the Veteran stated that he assisted staff in moving cadavers, gathering body pieces and parts and putting them into bags; the Veteran stated that “no special care to prevent blood leaking out.” As the March 2016 statements were made after the October 2015 VA opinion and may be considered probative, the Board finds the October 2015 VA opinion inadequate and remand warranted for an addendum opinion to address the Veteran’s statements. The Board also notes that review of the record shows that no VA opinion was obtained regarding the nature and etiology of the Veteran’s claimed depression to include as secondary to hepatitis C as requested by the August 2015 Board remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the August 2015 Board remand instructions is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Return the claims file to the VA examiner who provided the October 2015 opinion, if available, for an addendum opinion. The need for another examination is left to the discretion of the examiner providing the opinion. The Veteran’s claims file should also be made available to and be reviewed by the reviewing clinician. In completing this examination, the examiner is asked to respond to the following: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hepatitis C had its onset during, or is otherwise related to, his active duty service? (b.) If the examiner finds the Veteran’s hepatitis C had its onset during or is otherwise related to his active service: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s depression is aggravated by his service-connected hepatitis C? “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why. (c.) If the Veteran’s depression is NOT aggravated by his service-connected hepatitis C, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s depression had its onset during, or is otherwise related to, the Veteran’s active duty service. 3. In rendering the requested opinions, the VA examiner should identify any medical and lay evidence to include the Veteran’s submitted statements to consider and discuss all identified risk factors, prior to, during, and after service, including drug use, alcohol abuse, high-risk sexual behavior, and working with cadavers as stated in the Veteran’s March 2016 statement. The examiner should include any medical principles and literature relied upon to support the underlying medical opinion. (a.) The examiner is instructed not to rely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between the Veteran’s claimed disabilities and the Veteran’s military service. The examiner should address the particulars of this Veteran’s medical history and the relevant medical science as applicable to this claim. If the examiner chooses to reject the Veteran’s lay statements or reports, the examiner must provide a reason for doing so. (b.) The Veteran’s lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record (c.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (d.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.