Citation Nr: 21028589 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-36 122 DATE: May 11, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1975 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in March 2019 to attempt to obtain private medical records, obtain Social Security Administration disability records, and obtain a medical opinion. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, certain chronic diseases, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Although sleep apnea is not listed as a chronic condition, a continuity of symptomatology is a factor to consider when assessing a direct service connection claim. 1. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability The Veteran seeks service connection of sleep apnea. Specifically, he asserts that he began snoring and having difficulty sleeping in service. After a review of all the evidence, the Board concludes that the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. Initially, the Board recognizes a present diagnosis of sleep apnea. The service treatment records are silent for any complaints, symptoms, or a diagnosis relating to sleep apnea. The record does not contain a separation examination, but the Veteran specifically denied having frequent trouble sleeping in service treatment records from August 1983 and September 1993. Furthermore, the medical records do not show complaints of sleep apnea until July 2014, and he was first diagnosed with obstructive sleep apnea after a home sleep study in January 2015. These first complaints of issues with sleeping occurred almost two decades after separating from service. Therefore, continuity of symptoms has not been shown based on the clinical evidence. 38 C.F.R. § 3.303. The Board has considered the Veteran's statements that his sleep apnea symptoms have persisted since service. However, the Board is unable to grant service connection purely on his statements alone. While the Veteran has asserted continuous symptoms since service, the medical evidence of record weighs against his lay testimony. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay testimony). Specifically, the medical records do not show complaints of sleep apnea symptoms until 19 years after service. Significantly, the Board also notes that the Veteran submitted a service connection claim for posttraumatic stress disorder and a right shoulder strain in May 2008 but did not file a claim for sleep apnea until seven years later. Thus, the Board can infer that the Veteran had knowledge of the VA benefits system at that time and had the opportunity to file a claim for his sleep apnea. See generally, Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Therefore, continuity of symptomatology is not established. The medical treatment records between 2014 and June 2020 detail treatment for sleep apnea that includes a sleep study and a CPAP machine. A VA examination was scheduled to determine whether there is a nexus between the Veteran's current disorder and an event or injury that occurred in service. In January 2020, following a physical examination and review of the medical record, a VA examiner opined that it is less likely than not that the Veteran's sleep apnea incurred in or was caused by the claimed in-service event, injury, or illness. The VA examiner noted that there are no service treatment records or medical records detailing sleep apnea symptoms until 2014 and no other evidence that his disorder is related to military service. Additionally, the examiner opined that the Veteran's sleep apnea is secondary to allergic rhinitis, which is not a service-connected disability. Because the January 2020 VA examiner examined the Veteran, considered the Veteran's contentions, and reviewed the evidence of record while providing a well-reasoned rationale for the opinion supported by a study on sleep apnea, the Board finds the VA examiner's opinion highly probative. In arriving at these conclusions, the Board has considered the statements made by the Veteran asserting a causal connection between his sleep apnea and his active duty service. While lay statements may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. In the present matter, the Veteran is a lay person and not competent to provide a medical opinion regarding the cause of his present sleep apnea, particularly in light of the VA examiner's conclusion to the contrary, and the fact that the evidence fails to demonstrate an onset of symptoms or a diagnosis in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Continued on the next page) The Board concludes that the weight of the evidence is against the claims for service connection and there is no other doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, 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.