Citation Nr: 21030650 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-32 371 DATE: May 19, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's current obstructive sleep apnea is less likely than not related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from April 1983 to July 1989 and from September 2007 to November 2008. This case comes before the Board of Veterans Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for sleep apnea. The Veteran is claiming entitlement ot service connection for sleep apnea. He asserts that his sleep apnea developed while on active duty. 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). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). However, as the Veteran has not been diagnosed with one of the enumerated disorders listed under 38 C.F.R. § 3.309(a), application of 38 C.F.R. § 3.303(b) is not warranted. Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). The Board finds that the Veteran has a current sleep apnea disorder; a June 2013 sleep study found that obstructive sleep apnea was indicated. The first Shedden element, that of a current disability, is thus met. The Veteran also reported sleep problems in his October 2008 post-deployment health assessment and was assessed with insomnia. The second Shedden element, that of an in-service incurrence, is also met. What remains for the Board's consideration is the third Shedden element, that of a nexus between the current sleep apnea and in-service events. Upon review of the evidence of record, the Board concludes that the preponderance of the evidence does not demonstrate that this disability was incurred in service. In a May 2015 opinion, a VA examiner stated it was less likely than not that the Veteran's sleep apnea was incurred in or caused by service. According to the examiner, the Veteran was first diagnosed with obstructive sleep apnea in June 2013, and there is no indication that the insomnia documented in the Veteran's October 2008 service treatment records was evidence of the onset of that diagnosis. The examiner noted that symptoms specific to sleep apnea, like daytime sleepiness, are not documented in the Veteran's service treatment records. In a September 2020 hearing before the undersigned, the Veteran offered personal testimony regarding his sleep apnea. There, he testified he began having issues with sleep sometime in 2008 during his deployment and that he did not have any sleeping issues prior to his military service. The Veteran further testified that earlier in his career, during active duty from 1983 to 1989, none of his fellow seamen said anything about his sleep issues. The Veteran stated that his sleep issues, which first manifested during his time in Germany in 2008, are that he wakes up and has difficulty returning to sleep. At times he feels he sleeps well, but other times his wife will tell him he snored terribly. The Veteran testified the issue has been consistent since January or February of 2008 and he began using a CPAP machine around 2013 or 2015. He reported that his wife has stated she hears him stop breathing sometimes and that she has mentioned him gasping for air. The Veteran's wife provided a September 2020 lay statement regarding the Veteran's sleep apnea. There she wrote that on returning home from his deployment in October 2008 she noticed that he was having extreme difficulty concentrating on daily tasks. She further wrote that beginning in 2008 she witnessed him scream and talk in his sleep. She stated he routinely gasped for air at night or if he is napping in his recliner. She also recounted observing intermittent pauses in his breathing and loud snoring during sleep. The Board has considered the Veteran's and his wife's assertions that his sleep apnea is related to his period of active service. While the Veteran is competent to report having experienced symptoms of difficulty sleeping, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide a diagnosis in this case or determine that his symptoms were manifestations of his currently diagnosed sleep apnea, as the Veteran and his wife have not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, the Board gives more probative weight to the competent medical evidence, which does not support a nexus in this case. Specifically, the VA examiner offered a sound rationale for his conclusions based on the entirety of the Veteran's claims folder, to include his service and post-service treatment records. There is no competent medical evidence to the contrary. In sum, the weight of the competent and probative evidence does not establish that the Veteran's sleep apnea began in or is otherwise etiologically related to his time in service. Thus, the criteria for service connection for sleep apnea have not been met. The preponderance of the evidence weighs against the Veteran's claim, and service connection for sleep apnea must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.N. Bush, 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.