Citation Nr: 21029068 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-26 367 DATE: May 12, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT Obstructive sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to September 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for posttraumatic stress disorder (PTSD) and sleep apnea (for lack of new and material evidence). The Veteran's notice of disagreement was received in September 2013. The RO issued a statement of the case in May 2014. The Veteran's VA Form 9, substantive appeal to the Board, was received in May 2014. In September 2018 and April 2020, the Board remanded the case for further development and adjudicative action. While on remand, the RO issued a January 2021 rating decision granting service connection for PTSD. As such constitutes a full grant of the benefits sought on appeal with regard to such issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran asserts he has obstructive sleep apnea (OSA) related to his military service. Preliminarily, the Board notes that the Veteran's service treatment records were initially deemed unavailable for review. See May 2007 VA Memo. However, the Veteran subsequently has submitted several service treatment records in support of service connection claims. Nevertheless, the Board acknowledges that it is unclear whether the record contains a complete copy of the Veteran's service treatment records. In this regard, the U.S. Court of Appeals for Veterans Claims (Court) stated in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's [service medical records] have been lost or destroyed, the Board's obligation to provide well-reasoned findings and conclusions, to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. The Veteran has a current diagnosis of OSA, which, according to the record, was initially diagnosed in 1996, four years after his separation from service. See June 2020 VA Sleep Apnea Examination. Accordingly, the first element for establishing service connection has been met. With respect to an in-service event, injury, or illness, the available service treatment records do not reflect complaints, treatment, or a diagnosis referable to OSA or sleep problems. Additionally, a July 2009 VA Sleep Medicine Consult shows the Veteran reported that he did not believe he had OSA when he was in the military. According to such record, he asserted that he had gained 120 pounds, developed symptoms of OSA, and was sent to Sacred Heart Hospital for a sleep study after leaving the military. In this respect, Sacred Heart Hospital has verified three sleep studies from 1996. See August 2013 Confirmation of Services. The Veteran's wife describes his sleep patterns in a May 2019 letter. Regarding sleep apnea, she describes obstructive sleep consisting of loud snoring, in which his breathing would stop, and moving him to make sure he was alive. She further describes observing a sleep cycle of abnormal breathing with sleep interruption that causes him excessive daytime sleepiness. The Veteran was afforded a VA sleep apnea examination in June 2020. Upon review of available records, including the Veteran's lay statements, the examiner diagnosed OSA but found such was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale: By Veteran's own report he gained 120lbs between [Release from Active Duty] and [Polysomnogram] in 1996. Snoring, unrestful sleep, "gasping," "trouble sleeping," insomnia are not pathognomic for sleep apnea. Sleep apnea is diagnosed by polysomnography, apnea/hypoxia index (AHI) is the diagnostic standard for OSA. An AHI >5 indicates sleep apnea. People often will have episodes of "gasping" or brief times of stopping breathing, however <5/hour is considered normal. Insomnia is not a sign of sleep apnea and the two are mutually exclusive. Insomnia is a sleep disorder where people have trouble sleeping. They may have difficulty falling asleep, or staying asleep as long as desired. Insomnia is typically followed by daytime sleepiness, low energy, irritability, and a depressed mood. In contrast people with sleep apnea have no trouble falling asleep or staying asleep. Definite risk factors for OSA include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Obesity is the best documented risk factor for OSA. The prevalence of OSA progressively increases as the body mass index and associated markers (eg, neck circumference, waist-to-hip ratio) increase. Veteran gained 120lbs post [Active Duty] and was diagnosed with OSA after weight gain and 4 years after [Active Duty]. No nexus to [Active Duty] exists. In this regard, although obesity is not considered a disease or injury for VA purposes and generally may not be service-connected on a direct or secondary basis, see Marcelino v. Shulkin, 29 Vet. App. 156 (2018), if it represents an intermediate step between a service-connected disability and a current disability, depending upon its role in the development of the secondary disability, it may be service-connected on a secondary basis. VAOPGCPREC 1-2017 (Jan. 6, 2017). This guidance received the Court's endorsement as to the soundness of its analysis in Walsh v. Wilkie, 32 Vet. App. 300, 305 (2020). The Board acknowledges the Court's finding with respect to obesity as an intermediate step; however, neither the Veteran nor the record raises this theory of entitlement. In Garner v. Tran, No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81, at *1416 (Vet. App. Jan. 26, 2021), the Court provided a non-exhaustive list of considerations that could give rise to a reasonably-raised theory of secondary service connection with obesity as an intermediate step. Based on a review of nonprecedential decisions considering obesity as an intermediate step, the Court determined the critical commonality among the factors was that "there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition." Id. at 16 (emphasis added). Therefore, the Court held that incidental references to the veteran's weight or weight gain are insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step. Id. at 18. In this regard, the lay statements of the Veteran and his wife relate his sleep apnea exclusively to service, and the remainder of the record does not draw an association or suggest a relationship between the Veteran's obesity and a service-connected disability. Here, the most probative evidence of record indicates that the Veteran's sleep apnea is more likely than not caused by post-service activities, to include a weight gain of 120 pounds, and is less likely than not causally or etiologically related to any disease, injury, or incident during service. The examiner's opinion is extremely probative and is based on all the evidence of record, to include the 1996 and 2010 polysomnography reports, the July 2009 VA Sleep Medicine Consult, the Veteran's own statements, and his relevant medical history. In addition, the examiner provided a complete rationale, relying on and citing to the records reviewed. Notably, the record does not contain a competent medical opinion to the contrary. In this respect, although the Board acknowledges the Veteran and his wife sincerely believe his sleep apnea is causally related to service, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders that are not observable. 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the origin or cause of the Veteran's sleep apnea is not a simple question that can be determined based on mere personal observations by a lay person, the Veteran's lay testimony is not competent to establish a medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; Davidson, 581 F.3d at 1316. Here, it is not shown that the Veteran or his wife are otherwise qualified through specialized education, training, or experience to offer such an opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, the Board affords their statements as to the etiology of his current sleep apnea little probative weight. Consequently, the sole competent evidence with regards to a nexus to military service is the VA examiner's opinion. Accordingly, as the evidence of record does not demonstrate that the Veteran's sleep apnea had its onset in or is otherwise related to military service, the Board must deny service connection for sleep apnea at this time based on the evidence of record. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.