Citation Nr: 21029543 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-39 104 DATE: May 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for a respiratory disability, to include asthma, is remanded. FINDING OF FACT The weight of the evidence is against finding that the Veteran's obstructive sleep apnea was incurred in service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1979 to August 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. A November 2018 Board decision found new and material evidence had been received to reopen the previously denied claims for service connection for asthma and sleep apnea and remanded the issues on the merits to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to service connection for obstructive sleep apnea. The Veteran is seeking service connection for obstructive sleep apnea, which he contends either manifested during service or was caused by his exposure to asbestos and lead pain during active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). VA and private treatment records show obstructive sleep apnea has been diagnosed. Therefore, the remaining question before the Board is whether the obstructive sleep apnea is etiologically related to the Veteran's military service. The Veteran's service treatment records, including a June 1983 separation examination report, are silent for complaints, treatment, or diagnoses related to a sleep impairment. The Board acknowledges the Veteran was noted to have swollen tonsils on multiple occasions, but there is no indication this condition caused sleep difficulties or sleep apnea. A private sleep study shows sleep apnea was diagnosed as early as February 2006, many years after service. An August 2008 private treatment record appears to indicate the Veteran had obstructive sleep apnea for "many years," but no specifics were provided. In an October 2019 statement, the Veteran's spouse reported they were engaged in January 1982 and that since that time, she's observed him snoring and experiencing sleep difficulties. In an October 2019 statement, the Veteran's coworker noted he had worked with the Veteran for over 15 years and observed him regularly fall asleep while working. In multiple statements, the Veteran contended the sleep apnea was caused by his exposure to lead and asbestos during active duty service. The Veteran was provided a VA sleep apnea examination in September 2019. The examiner diagnosed sleep apnea. The examiner opined the sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner concluded there was no evidence to support that the Veteran's sleep apnea began during service or was related to lead or asbestos exposure. She noted the sleep apnea was diagnosed in 2006 and that there was no medical literature that suggests lead exposure causes sleep apnea in adults. In addition, a 2009 CT scan was negative for asbestosis. Based on a consideration of the above, the Board finds the evidence weighs against finding the Veteran's sleep apnea was incurred in or caused by service. The Board finds the September 2019 VA examiner's opinion to be highly probative because she provided a rationale that shows she considered the Veteran's reported history and the medical evidence. Her findings are also supported by the VA and private treatment records that show multiple CT scans of the lungs did not indicate exposure to asbestos. The records also do not suggest the Veteran's sleep apnea manifested during service or is otherwise related to the Veteran's active service. The Board acknowledges that the Veteran's spouse and coworker are competent to report that they witnessed him experience sleep difficulties. However, there is no indication they are medical professionals and competent to opine on the nature and etiology of sleep disorders, which is a medically complex question. The Board has also considered the Veteran's general assertions that his obstructive sleep apnea is related to his service. But as a layperson, he is not competent to opine on the etiology of a sleep disorder. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). In the absence of competent evidence linking the Veteran's obstructive sleep apnea to service, a preponderance of the evidence is against the claim. Accordingly, service connection for obstructive sleep apnea must be denied. REASONS FOR REMAND Entitlement to service connection for a respiratory disability, to include asthma is remanded. Initially, given that "obstructive airways disease" was diagnosed based on the results of a September 2019 pulmonary function test, the Board has recharacterized the claim for service connection for asthma to include any other obstructive airway diseases or other respiratory disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence). The Board regrets the additional delay it will cause, but finds the issue of service connection for a respiratory disability must be remanded for a new VA examination. The Veteran was provided a VA respiratory examination in September 2019. The VA examiner concluded the Veteran had never been diagnosed with a respiratory condition. However, the physician who interpreted the associated pulmonary function test results diagnosed a moderately severe obstructive airways disease. Accordingly, the nature and etiology of any respiratory disability is very unclear in this record. A remand to schedule an examination and obtain an adequate etiology opinion is required. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. If possible, the Veteran should get these records himself. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disability, to include obstructive airway disease and asthma. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: (a) Provide diagnoses for any respiratory disability. (b) For each respiratory diagnosed, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it originated during active service or is otherwise etiologically related to active service, including the Veteran's claimed exposure to asbestos and lead therein. The examiner must not ignore the Veteran's competent reports the symptoms experienced during active service and since. The examiner must include in the medical report the rationale for any opinion expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.