Citation Nr: 21029804 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 11-21 095A DATE: May 17, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence shows that sleep apnea was not present in service or until many years thereafter, it is not related to service or to an incident of service origin, and it is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to a service-connected acquired psychiatric disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1956 to August 1966. In September 2017, November 2018, and October 2020 the Board of Veterans' Appeal (Board) remanded the appeal to undertake additional development. As to the post-remand development, the Board finds that it substantially complied with the Remands. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board has reached this conclusion because while the appeal was in remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. The Board has also reached this conclusion because the post-remand record shows that in December 2020 and January 2011 the RO obtained new opinions as the diagnoses and etiology of the Veteran's sleep apnea based on all theories of entitlement (i.e., direct and secondary service connection) which opinions are supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature and the opinions are supported by medical reasoning. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Also see ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or to try to obtain additional medical record is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Lastly, the Board notes that additional evidence was added to the record since the regional office (RO) issued the March 2021 supplemental statement of the case. However, because the Board does not find this evidence pertinent as to the sleep apnea claim, it need not delay adjudication of the appeal to obtain a waiver of RO review or Remand for such review. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Service Connection Claim The Veteran is seeking service connection for sleep apnea. Specifically, he asserts that his sleep apnea is secondarily caused and/or aggravated by his service-connected acquired psychiatric disability, which is diagnosed as posttraumatic stress disorder (PTSD) and depression. Additionally, he has generally asserted that his sleep apnea began while he was in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, 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 evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the post-service record shows the Veteran being diagnosed with sleep apnea. See, e.g., 2006 sleep study. The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability and his wife is competent to report on what comes to her via her own senses, such as the Veteran having day time drowsiness and snoring at night. See Davidson, supra. However, the Veteran's service treatment records are silent for any signs, symptoms, treatment, or diagnosis of sleep apnea or any other sleep related disorder. In fact, the Veteran's August 1966 separation examination is silent for any indications of sleep related disturbance or diagnoses. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). While the Veteran and his wife have reported that he began to snore loudly, gasp for air, and sleep poorly beginning in 1965, there are no indications that treatment was sought. It is important to note that the Veteran was given the opportunity to mention any such symptoms at this examination but chose not to. In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems weights against his current claim. See Owens, supra. Overall, the Board must find the service records provide unusually highly probative evidence against the claim. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current sleep apnea despite the Veteran and his wife's claims to the contrary. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Similarly, the record does not show that the Veteran had a continued problem with sleep apnea in and since service. In fact, as noted above the, service treatment records, including the August 1966 separation examination, are negative for indications of sleep related disturbance or diagnoses. Likewise, and more importantly, the post service medical records do not show treatment for sleep apnea, or related symptoms until a 2006 sleep study which resulted in a diagnosis of sleep apnea, approximately 40 years following separation from service. The Board recognizes the statements from the Veteran and his wife regarding his history of his sleep related symptoms since service. While they are competent to testify as to facts which they experienced or witnessed firsthand, such as loud snoring or grasping for air during active service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau, supra. In any event, the Board determines that the reported history of continued symptomatology since active service, while competent, is nonetheless insufficient in establishing a relationship between the Veteran's sleep apnea and service. Specifically, the large gap in time between the Veteran's active duty service and 2006 diagnosis for sleep apnea weighs heavily against his claim. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Moreover, the Board notes that the Veteran filed claims for VA education benefits in June 1970, many years prior to the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits but made no reference to the disorders he now claims, weighs heavily against his credibility. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with sleep apnea in and since service despite the claims by the Veteran and his wife to the contrary. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). The Board also finds that the preponderance of the evidence shows that the Veteran's current sleep apnea is not due to his military service nor caused or aggravated by the service-connected PTSD including the medication taken to treat this disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(d), 3.310; also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein); Allen, supra; Wallin, supra; Ward, supra. In this regard, the Veteran was provided with multiple VA examinations to determine the nature and etiology of his sleep apnea and the Board finds that the December 2020 and January 2021 provide both competent and credible evidence against the claim. See Owens, supra. Specifically, the December 2020 opinion author noted that they reviewed the Veteran's entire claims file including his service treatment records and post service medical records. It was opined that the Veteran's sleep apnea was less likely than not related to his active duty service. First, the examiner noted the large gap between the reported symptoms during service by the Veteran and his wife and noted that such symptoms are not only indicative of sleep apnea and that sleep apnea requires a specific diagnosis under the polysomnography apnea/hypoxia index. Addressing the Veteran's PTSD as a possible cause or aggravating factor of his sleep apnea, the examiner noted that there was no credible medical evidence to support a link between the two given that PTSD is a mental disorder and sleep apnea is the result of a physical mechanism. Finally, the examiner also addressed the theory that the Veteran's PTSD caused his obesity which led to the development of his sleep apnea. The examiner stated that obesity is the result of numerous factors, most important of which are food intake and level of exercise. They noted that while obesity is a risk factor for the development of sleep apnea, the Veteran's obesity cannot be said to be due to his PTSD or PTSD medications. The examiner noted that the Veteran's obesity was more likely the result of lifestyle-based factors such as exercise or diet. In dismissing the theory that the Veteran's PTSD or related medications resulted in obesity, the examiner noted that there are many people with PTSD who are not obese. The RO obtained a further addendum from the December 2020 examiner in January 2021 to address the medical evidence submitted by the Veteran and his representative. This evidence included some medical treatises and a private opinion written by the Veteran's private psychiatrist, Dr. P.E.P. The VA examiner noted that the studies cited by the Veteran's representative only demonstrated a correlation between PTSD and sleep apnea rather than a causal relationship. Addressing the opinion from Dr. P.E.P., the VA examiner noted that there was no medical evidence or peer reviewed researched showing that psychotropic medications affect patterns of brain activity which would exacerbate sleep apnea. Additionally, the VA examiner noted that there was no medical literature which suggests that either PTSD or medications for its treatment result in an airway restriction such as with sleep apnea. The Board finds the December 2020 and January 2021 VA opinions to be the most competent and credible medical opinions of record because they are provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by citation to evidence found in the record and controlling medical literature as well as because they are supported by medical reasoning. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Colvin, supra. In reaching the above conclusion the Board has not overlooked the opinion submitted by the Veteran from Dr. P.E.P. However, the Board finds that it holds much less weight than those submitted by the above VA examiners. See Owens, supra. The Board has reached this conclusion because there is no indication that Dr. P.E.P. reviewed the Veteran's entire case file up to the point that they authored their opinion. See Swann v. Brown, 5 Vet. App. 177, 180 (1993) (without a review of the claims file, an opinion as to etiology of an underlying disorder can be no better than the facts alleged by the veteran). Furthermore, Dr. P.E.P. is a psychiatrist and would have less insight in discussing a disorder such as sleep apnea which is not a mentally or chemically based disorder, but rather a physical one. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In addition, the Board finds that neither the Veteran or his spouse are competent to provide the missing direct and secondary nexus opinions because they do not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused his current sleep apnea). See Davidson, supra. It is vital for the Veteran to again understand that the Board has taken his concerns seriously (it was the bases of the Board's remand), however, there is now overwhelming medical evidence against these claim from the VA examiners that the Board cannot ignore. The Board observes that the Veteran submitted unrelated Board decisions to support his claim, prior unrelated Board decisions are non-precedential, or binding, on the Board. See 38 C.F.R. § 20.1303. Rather, the Board reviews the particular facts of each case in light of applicable procedure and substantive law. Therefore, the Board finds that the claim of service connection for sleep apnea is denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. (Continued on the next page) In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor 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.