Citation Nr: 21029351 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-23 438 DATE: May 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (sleep apnea) is denied. FINDING OF FACT The competent evidence of record does not reflect that the Veteran's sleep apnea was manifested in, caused by, or is otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 2003 through March 2009. The Veteran was awarded (among other decorations) the Army Achievement Medal and the Korean Defense Service Medal. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in September 2019 and December 2020. In the September 2019 remand, the Board directed that the Veteran undergo a VA examination and that an opinion regarding the possible relationship between his claimed sleep apnea and his active service be obtained. Finding that eventual opinion to be inadequate, the Board again remanded the claim in December 2020 for a new opinion. That opinion having been obtained (and deemed adequate as noted in the analysis section), there is substantial compliance with the Board's directives such that the case may move forward. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for obstructive sleep apnea (sleep apnea) is denied. The Veteran contends he has suffered from a sleep disability since he separated from service. He reports being diagnosed with sleep apnea in 2013, and contends that the disability is related to his time in-service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. 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; 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; 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. 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 v. Nicholson, 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 deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. 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. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has previously been diagnosed with sleep apnea, the preponderance of the evidence is against finding that the Veteran's sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. As the Veteran has been diagnosed and treated for sleep apnea, the Board concludes the current disability criterion is met. The Board notes the Veteran is competent to report any symptoms he experienced and observed while in-service on active duty. The Board finds no reason to disbelieve the Veteran's statements regarding a sleep issue in-service. Additionally, the Veteran's service treatment records reflect he reported no sleep disturbances, but he reported feeling tired in November 2008. The Veteran also reported frequent trouble sleeping on his Report of Medical History at separation. Therefore, the second element of service connection is met. The Board finds, however, that there is no competent evidence relating the Veteran's conditions to his active service. The Veteran's VA treatment records document his diagnosis and treatment for sleep apnea, but do not provide a link to his service. Beginning in 2011, the Veteran's VA treatment records reflect reports of insomnia. In 2011 and 2013, the Veteran reported his back pain interfering with his sleep. The Veteran's VA treatment records reflect complaints of insomnia and difficulty falling asleep and staying asleep. The Veteran also reported complaints of daytime fatigue and snoring when sleeping, frequent awakenings, waking up coughing, loud snoring, and possible apneas witnessed. The Veteran was diagnosed with sleep apnea in 2013 and received in continuous positive airway pressure (CPAP) in 2014. The Veteran's sleep study reflected his sleep apnea is worse in REM sleep and in the supine position, his diagnosis was mild obstructive sleep apnea. His VA treatment records reflect the CPAP was helpful and when used, the Veteran reported better quality sleep. Without the CPAP, the Veteran reported he feels tired and his sleep is not refreshing, snoring, and he wakes up gasping and choking. His VA treatment records continue to report mild sleep apnea which is worse in REM and the supine position. The Veteran submitted buddy statements that discussed the Veteran's ongoing issues with a sleep disability since he separated from service. The buddy statements discuss the Veteran before, during, and after service. A buddy statement was submitted by L.R. who served in basic training and was stationed in Korea with the Veteran. L.R. reported the Veteran did not have issues sleeping during basic training, but later in Korea, L.R. recounted the Veteran suffered from trouble sleeping and feeling tired. The Veteran reported he complained of sleep issues while he was in-service and since he separated from service. He stated in-service, a sleep study was requested, and he stated his chain of command for his unit denied the request. The Veteran testified at his June 2019 hearing about his sleep issues. He reported they began in-service and have continued since separation from service. He stated that in-service, his platoon members complained he snored loudly, and he asked to go to sick call for it. He reported that after he left service, he thought he had insomnia, and discussed this with his primary care physician. He reported he was delayed getting a sleep study because of a hurricane, but once diagnosed he started using a CPAP. The Veteran submitted a private medical opinion which reported the Veteran has hypertension, loud snoring, frequent awakenings, and apneic episodes that began in-service. The private opinion reported a sleep study was previously provided and noted the results and that the Veteran was diagnosed with mild obstructive sleep apnea. The private opinion did not provide rationale or causation for the Veteran's sleep apnea. The Veteran underwent VA examination for sleep apnea in December 2019 and an addendum opinion was provided in July 2020. In the December 2020 Board decision, these VA examinations were determined to be inadequate. A January 2021 addendum opinion was received. The VA examiner stated the Veteran's records were reviewed, including the private opinion, VA opinions, service treatment records, separation examination, sleep study, post-treatment records, and lay statements. The January 2021 VA examiner concluded the Veteran's claimed condition as less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner determined that the evidence does not support the onset of sleep apnea while the Veteran was in-service. The VA examiner noted the Veteran complained of frequent trouble sleeping in-service and on his separation examination. The VA examiner concluded the Veteran's reports do not support a diagnosis of sleep apnea. The VA examiner cited to the Veteran's service treatment records (STR) that reflect the Veteran reported 6 to 8 hours of sleep and a note in the STR of "normal for Veteran." Additional STR noted by the VA examiner reflect the Veteran stated "no sleep disturbances" but noted tiredness. STR's also read the Veteran reported he "sleeps well, normally rested on awakening." The VA examiner cited the June 2010 VA examination that noted the Veteran reported excessive sleeping alternating with insomnia due to illness or injury during active service. The VA examiner reported that insomnia is generally due to psychological factors, stressors, and sleep arrangements. The VA examiner concluded the records do not support or constitute a diagnosis of sleep apnea in service. The VA examiner reported the Veteran's contentions are common in many sleep disturbances, he stated that tiredness and fatigue are not necessarily due to sleep disturbances. The VA examiner cited to the Veteran's own statements in 2008 and 2009 and concluded they do not support a diagnosis of sleep apnea. The Veteran noted the Veteran had sleep disturbances in-service, but the evidence of record does not support the diagnosis of sleep apnea. Additionally, the VA examiner noted the Veteran was not diagnosed with sleep apnea until 2013. He reported the threshold for a diagnosis of sleep apnea is 5.0 and the Veteran was diagnosed with mild sleep apnea with an AHI of 7.3. The VA examiner noted the Veteran reported sleep disturbances consistent with insomnia with easy awakening, but reported 6 to 8 hours of sleep, which is normal for a Veteran. The VA examiner noted that snoring, easy awakening, daytime somnolence, fatigue, gasping, and choking are non-specific complaints and a diagnosis of sleep apnea cannot be made without a sleep study. The VA examiner noted the record reflects sleep disturbances in-service, but his symptoms did not elevate to suspicion of sleep apnea, as a sleep study was not performed. The VA examiner concluded that the fact the Veteran had mild sleep apnea for year after service does not support a diagnosis as arising in-service. The VA examiner explained if sleep apnea began in 2008 per the Veteran's lay statements, it is more likely than not the Veteran would have had a higher rating/AHI, as the natural history of sleep apnea is progression over time. The VA examiner concluded it is less likely than not the Veteran's sleep apnea had its nexus in service and it likely arose later. Ultimately the VA examiner concluded the Veteran's claimed condition as less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Lay witnesses are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses. Layno, 6 Vet. App. 465, 470. Determining the etiology of a disability such as sleep apnea is complex, however, requiring specialized medical knowledge or training that the Veteran, family friend, and fellow service members are not shown to have. Jandreau, 492 F.3d 1372; Woehlaert v. Nicholson, 21 Vet. App. 456, 462. While the Board finds the statements of the Veteran's fellow soldiers to be credible as to their descriptions of the Veteran's sleep patterns in service, they are not competent to determine that the Veteran suffered from sleep apnea during his active service. In deciding this appeal, the Board must weigh the evidence and in so doing, may accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board may favor the opinion of one competent medical expert over that of another, provided the reasons therefor are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Following a thorough review of all the evidence of record, the Board finds that the January 2021 VA medical opinion is more probative than the July 2019 private opinion. As the competent medical evidence does not reflect that the Veteran's sleep apnea was either incurred in or caused by an in-service injury, event, or illness, the claim must be denied. 38 C.F.R. § 3.312. In finding so, the Board recognizes the January 2021 VA examiner's opinion to be most probative as the examiner reviewed all the Veteran's medical history, including the private opinion, and the lay statements provided by the Veteran and the buddy statements. The private opinion offered a diagnosis of sleep apnea but did not provide a link of the diagnosis to the Veteran's service. The private opinion is inadequate for rating purposes and not probative in this matter. The Board has determined the January 2021 VA examiner provided a more comprehensive analysis and rationale, discussing the length of time since service to diagnosis and discussed the progression of sleep apnea (facts that also make this opinion adequate for rating purposes). The 2021 VA examiner also discussed the Veteran's in-service sleep complaints and service treatment records and concluded this information did not support a diagnosis of sleep apnea; ultimately the VA examiner concluded the Veteran's claimed condition as less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Indeed, VA may favor the opinion of one competent medical expert over that of another when the decision makers give an adequate statement of reasons and bases. Based on the foregoing, the Board does not find the private medical opinion is probative evidence in support of the Veteran's claim. Accordingly, the Board finds that entitlement to service connection for sleep apnea is denied. 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 Veteran's claim, the doctrine is not applicable in the instant appeal. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.