Citation Nr: 21026617 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-30 785 DATE: May 3, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Veteran's OSA did not manifest in service and is not etiologically related to his service. CONCLUSION OF LAW The criteria to establish service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1979 to November 1983 and had additional service with the Army Reserve. This matter was previously before the Board of Veterans' Appeals (Board) in March 2020 when the issues of service connection for a low back condition, a bilateral foot condition, and OSA were remanded for further development. In part, the Regional Office (RO) was directed to attempt to obtain outstanding service treatment records, to include records pertaining to the Veteran's Army Reserve service. Additional VA treatment records were obtained and associated with the Veteran's file. VA attempted to obtain additional service records from the National Personnel Records Center (NPRC), and the documented attempts are of record. However, according to the NPRC, no records are available. In July 2020, VA received notification from the Army Records Processing Center that the Veteran's service records could not be located. In November 2020, VA notified the Veteran of attempts made to obtain additional outstanding records and that the records cannot be located. The Veteran was notified that all efforts to obtain the needed information have been exhausted, and that a determination was made that further attempts to obtain the records would be futile. Also, pursuant to the March 2020 Board remand, the Veteran was afforded VA examinations for the issues on appeal in January 2021. The Veteran was granted service connection for his low back and bilateral foot conditions in a March 2021 rating decision. However, in a March 2021 supplemental statement of the case, service connection for OSA was denied. Thus, service connection for OSA is the only remaining issue on appeal. The issue of service connection for OSA is once again before the Board. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran 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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for OSA is denied. The Veteran contends that his OSA is related to his active service. The preponderance of the evidence is against the claim, and the claim will be denied. As discussed above, despite exhaustive efforts as notated in the file, the Veteran's service records, to include Army Reserve records, were not able to be obtained. As discussed above, the March 2020 Board remand directed the RO to attempt to obtain missing service records. In November 2020, the Veteran was informed that attempts had been made to obtain these service records, but the records could not be located and were unavailable for review. The Veteran was further informed that all efforts to obtain the needed information were exhausted and based on these facts, it was determined that further attempts to obtain the records would be futile. The Veteran was invited to submit records in his possession and advise VA of possible locations of the records. However, as of the date of this decision, no additional information has been provided by the Veteran. There has been compliance with the Board's prior remand directives on obtaining service department records. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). A December 1997 VA treatment record indicates that the Veteran stated that he "needs help with cocaine." Marijuana and alcohol use were also reported. The Veteran reported that he works nights as a security officer, and that he sleeps "poorly" with an average duration of four to five hours daily. The assessment was noted as polysubstance abuse/dependence. Daily Alcoholics Anonymous (A.A.) meetings attendance was recommended. A January 1998 VA treatment record indicates that the Veteran reported that he was "staying sober keeping straight." He reported that he was feeling better physically, eating more, and sleeping better. A July 2009 VA treatment record indicates that the Veteran was evaluated for pain in his right ankle, low back, bilateral shoulder, and left hand. The Veteran was also screened for depression. The Veteran reported trouble falling asleep, or staying asleep, or sleeping too much several days per week. He also reported feeling tired or having little energy several days per week. The Veteran was not evaluated for OSA at the time, and there is otherwise no indication of complaints, treatment, or diagnosis of OSA. An August 2010 VA treatment record indicates that the Veteran reported itching of his arms and back. He reported that the use of Benadryl somewhat helped. The Veteran was advised that the use of Benadryl may make him drowsy. The Veteran reported trouble with falling asleep, or staying sleep, or sleeping too much nearly every day. He also reported feeling tired or having little energy nearly every day. The Veteran was not evaluated for OSA at the time, and there is otherwise no indication of complaints, treatment, or diagnosis of OSA. A September 2010 VA treatment record indicates reported morning headache that may be the result of snoring. A sleep study was ordered. A November 2010 VA sleep study showed that the Veteran had snoring and mild obstructive respiratory events during sleep that did not meet the diagnostic criteria for OSA. It was recommended that the Veteran avoid supine sleep, use nasal decongestants, and lose weight. The Veteran underwent a sleep study in March 2014 and was diagnosed with OSA. In the January 2019 Board hearing, the Veteran's wife testified that she recalled the Veteran snoring frequently and that he would stop breathing throughout the night in 1979 and since. In an April 2020 statement, the Veteran's spouse stated that she was not familiar with the Veteran's sleep apnea prior to his service. She stated that the Veteran's has long pauses of breathing and swings his arms during sleep. In accordance with the March 2020 Board remand, the Veteran was afforded a VA examination in January 2021. The examiner indicated that an in-person examination was conducted and that a review of the Veteran's VA e-folder was completed in conjunction with the examination. The Veteran reported that his spouse began to complain about his loud snoring shortly after he began basic training in 1979. The examiner noted that the Veteran underwent a sleep study in November 2010, but that the Veteran did not meet the criteria for OSA at the time. Instead, it was recommended that the Veteran avoid sleeping on his back. The examiner noted that an April 2014 sleep study revealed a diagnosis of OSA. The examiner stated that the Veteran's OSA onset after November 2010. Given the above, the examiner stated that, in the absence of any explanation of why the Veteran might have had OSA in-service, then no longer had it, then had it again, the Veteran did not have OSA while in-service. The Veteran's service treatment records are unavailable for review, and there is no medical evidence establishing a nexus between the Veteran's reported in-service symptoms and his current diagnosis of OSA. While the Veteran and his spouse believe that his OSA is related to an in-service injury, event, or disease, as lay people, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence is against awarding service connection for OSA. Even considering the statements made by the Veteran and his spouse that he began experiencing symptoms of OSA in-service, the record indicates that a November 2010 sleep study revealed that the Veteran did not meet the criteria for a diagnosis of OSA, and that he was not diagnosed with OSA until March 2014. Additionally, there is no probative evidence establishing a nexus, or link, between his OSA and his service, which was diagnosed approximately three decades later. Without evidence of a nexus, the claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.