Citation Nr: 21024830 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-16 405 DATE: April 26, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran’s sleep apnea is not related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1982 to November 2002. The case is on appeal from a November 2014 rating decision. In March 2019, the Veteran testified at a Board hearing. In a September 2019 decision, the Board reopened previously denied claims of service connection for back and right shoulder conditions. The Board also granted service connection for lumbar spine, right shoulder and feet conditions. At that time, the Board also denied service connection for sleep apnea. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Joint Motion for Partial Remand (JMPR), the parties moved to vacate and remand the portion of the Board’s decision denying the sleep apnea issue. In a May 2020 Order, the Court vacated the Board’s September 2019 decision in that regard, and remanded the matter to the Board for further appellate review consistent with the Order. The Board remanded the claim for further development in November 2020 in accordance with the Court Order. 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 for sleep apnea. The Veteran contends his sleep apnea had its onset during his active duty service. He asserts that he had symptoms of sleep apnea while in the military, but the disorder was undiagnosed until after service. Private treatment records from October 2015 include a letter from the Veteran’s physician stating he had a diagnosis of sleep apnea in June 2014. He noted that while in the military, the Veteran noticed excessive tiredness but thought of it as normal aging and did not consult a doctor. He further notes that associated conditions of sleep apnea are short neck, overweight/obesity, excessive daytime sleepiness, fatigue, and hypertension. Based on the existence of these symptoms in the Veteran, the physician concluded “it is plausible the Veteran may have had symptoms prior to retirement in 2002.” Buddy statements from two service members who served alongside the Veteran while in the Navy include descriptions of witnessing his loud snoring, choking, and gasping for air in the middle of the night, and seeing him fall asleep and taking naps during the day. Both stated that because no one had heard of sleep apnea while they were in the service, they thought it was normal behavior resulting from long work hours. However, both believed that if the Veteran was tested for sleep apnea while they were in service, he would have been diagnosed with it. The Veteran was afforded a VA examination in March 2016. The examiner opined that the Veteran’s sleep apnea was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner came to this conclusion after considering the Veteran’s June 2014 sleep apnea diagnosis and history with fatigue, snoring, and apnea reported to have occurred during military service. The examiner reasoned that even though a veteran has symptoms of sleep apnea, such as fatigue, snoring, or apneic episodes, this is not sufficient for a diagnosis because it requires an apnea hypopnea index (AHI) of 5; otherwise, having apneic episodes every 15 minutes, for example, would still be considered normal. Upon the Board’s remand, the Veteran was provided another VA medical opinion in December 2020. Amidst the coronavirus pandemic, the examiner decided the best method to obtain medical information was a review of the available records in conjunction with an interview with the Veteran using the ACE process because the existing medical evidence supplemented with a telephone interview provided sufficient information on which to prepare the questionnaire and such an examination would likely provide no additional relevant evidence. Based upon a review of the record and interview with the Veteran, the examiner opined his sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner provided that the discussion of sleep apnea is not present in the records until 2013, prior to obstructive sleep apnea (OSA) being diagnosed. There is no mention of excessive daytime fatigue, headache, or other sleep related symptoms on any health history or assessments. Additionally, the examiner addressed the May 2019 note from the Veteran’s private physician, in conjunction with a note provided in November 2015, by providing that a statement/opinion without evidence of why the opinion is rendered is unsubstantiated. The examiner also addressed an October 2015 letter noting it is “plausible” OSA was present and that his weight was consistent from 2000 to the time of diagnosis in 2014. The examiner provided proof that the Veteran’s weight was not consistent from enlistment to the time of diagnosis in 2014, stating that at enlistment in November 1982 he weighed 138 lbs, 165 lbs in June 1986, 175 lbs in June 1998, 188 lbs upon retirement in July 2002, 198 lbs at the June 2014 sleep study, and 205 lbs in October 2014. The examiner also called into question why it took so long for the Veteran to be diagnosed with OSA if the same private physician had been caring for him since December 2011 and the symptoms for OSA were present since service. The examiner further provides that the most potent risk factor for OSA is weight gain and obesity and that the additional weight gain since leaving active service is the most likely cause of the Veteran’s sleep apnea. The Board notes that although the Veteran is competent to report his symptoms, to include sleeping problems, a determination as to whether the Veteran’s current sleep apnea is related to service is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no known or reported medical expertise, he is not legally competent to establish a nexus between sleep apnea and service; thus, his opinion and those of other lay people as to causation lack probative value. In reaching a determination, the Board has accorded the November 2020 VA opinion the greatest probative value. As this opinion is unequivocally stated, consistent with the record, addresses the arguments posited by the private physicians, and supported by cited evidence of record, the Board finds this medical opinion is probative evidence against the Veteran’s claim. That is, the medical evidence outweighs the Veteran’s report of a history of continuous symptoms and lay opinions on the matter, even if such a theory is intuitively plausible to a lay person. The VA opinion addresses the concerns of the May 2020 JMPR. As the preponderance of the evidence is against the claim of service connection for sleep apnea, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for sleep apnea is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.