Citation Nr: 21030972 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-11 256A DATE: May 20, 2021 ORDER Service connection for sleep apnea to include hypersomnolence is denied. REMANDED The issue of whether the reduction in rating from 50 percent to 30 percent for total abdominal hysterectomy effective June 23, 2009, was proper, is remanded. FINDING OF FACT The most competent, persuasive and probative evidence is against finding that the Veteran has a current sleep apnea diagnosis that had its onset during active duty service or is otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea to include hypersomnolence have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to September 1980, October 1999 to March 2000 and May 2002 to September 2002, with additional reserve service from September 1980 to April 2007. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The claim for service connection for sleep apnea was remanded in February 2018 for further development. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service connection for tension headaches and bilateral upper extremity radicular group radiculopathy disabilities were granted by May 2018 and November 2019 rating decisions, respectively, and are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board notes that the issues of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and an effective date prior to June 26, 2013 for the grant of service connection for PTSD are awaiting a Board hearing. Accordingly, those issues will be the subject of a later Board decision, if necessary. SERVICE CONNECTION 1. Service connection for sleep apnea to include hypersomnolence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran seeks service connection for sleep apnea, asserting in essence that she suffers from sleep apnea that began during active duty and has continued since that time. During the October 2019 Board hearing, she testified that she snored during service, although she could not specifically recall when it began, and that she was first diagnosed with sleep apnea in approximately 2011 after undergoing her first sleep study, after which she began using a CPAP machine. She stated she underwent weight loss surgery in 2011 or 2012, in part, to correct her sleep apnea and while the surgery helped with weight loss, it did not help her sleep apnea symptoms. The medical evidence shows conflicting findings as to whether the Veteran is currently diagnosed with obstructive sleep apnea. After reviewing the record, the Board finds that the most probative evidence does not establish the presence of a current sleep apnea disability during the pendency of or approximate to the appeal. In this regard, the Board notes that an October 2011 private polysomnography report shows the Veteran was diagnosed with mild obstructive sleep apnea in 2011, which is 6 years before the Veteran's submitted her March 2017 claim for service connection for sleep apnea. As this diagnosis was not rendered during or approximate to the pendency of this appeal, the diagnosis may not be used to establish the first requirement of service connection of a current disability. During the pendency of the appeal, a January 2017 private polysomnogram showed the Veteran did not meet the overall diagnostic threshold for obstructive sleep apnea and there was no evidence of snoring; and an October 2017 VA treatment record notes that the Veteran's sleep apnea symptoms stopped after bariatric surgery for weight loss, after which the Veteran discontinued the CPAP machine. Additionally, VA treatment records do not establish the presence of a diagnosis of sleep apnea during or proximate to the pendency of the claim. Conversely, a June 2017 examination report by a private chiropractor renders a diagnosis of sleep apnea and notes use of a prescribed C-PAP machine. However, the chiropractor's diagnosis appears to be based on the Veteran's reported medical history, rather than objective medical findings, and does not reflect that the chiropractor reviewed the Veteran's claims file, including the January 2017 private polysomnogram report. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of lay history unenhanced by any additional medical comment by the examiner, is not competent medical evidence); see also Stefl v. Nicholson, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Thus, the Board finds the June 2017 private chiropractor's opinion is not probative or persuasive evidence as to the presence of a sleep apnea diagnosis. The Board affords the January 2017 polysomnogram report significant weight and finds it the most probative and persuasive evidence as to the presence of a current diagnosis. Accordingly, the Board finds that the requirement of a current disability of sleep apnea has not been met during the pendency of the appeal, and the claim must be denied. Notwithstanding the absence of a current diagnosis, the Board further notes that the requirements of an in-service incurrence and nexus have also not been met. The Veteran's active duty service treatment records do not reference any complaints of, or treatment for, problems with sleep or symptoms associated with sleep apnea. Further, while the Veteran testified during the Board hearing that she snored during service and she is competent to report symptoms she experienced, the record does not corroborate such assertions or otherwise suggest the presence of sleep apneic symptoms during service, nor could the Veteran specifically recall when her symptoms started. Thus, the Board finds the Veteran's assertions of the onset of sleep apneic symptoms during active duty are since are not consistent with the evidence of record and thus not reliable or persuasive. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record). The first medical evidence of complaints or findings relating to sleep apnea is in 2011, which is a decade after her third and final period of active duty. The Board finds the medical evidence contemporaneous to service to be significantly more persuasive and credible than the Veteran's assertions in furtherance of her claim. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Moreover, there is no probative evidence linking the Veteran's sleep apnea to active duty. While the June 2017 private chiropractor opined that the sleep apnea was as likely as not directly and causally related to the Veteran's military service, the Board affords the June 2017 private opinion little probative weight, as the opinion is not supported by any rationale for the conclusion reached, nor did the clinician specifically link the sleep apnea to a period of active duty. See Stefl v. Nicholson, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Also, as already noted, the chiropractor's conclusion was based on the medical history as reported by the Veteran. See LeShore v. Brown, 8 Vet. App. 406 (1995). Thus, the June 2017 is not probative or persuasive evidence of a nexus to service. Additionally, while the private chiropractor opined that the Veteran's sleep apnea is as likely as not secondary to COPD/bronchial asthma, the opinion is not probative as no rationale was provided. See Stefl, at 124. Moreover, the Veteran is not service-connected for COPD/bronchial asthma; thus, there is no basis to award service connection for sleep apnea as secondary to COPD/bronchial asthma. See Pratt v. Derwinski, 3 Vet. App. 269 (1992). There are no other opinions of record linking sleep apnea to active duty. The Board acknowledges that a VA examination on this matter was not obtained. However, there is no competent and credible evidence of a current sleep apnea diagnosis or in-service event, injury, or disease. Therefore, a VA opinion is not required. See 38 C.F.R. § 3.159 (c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). To the extent the Veteran believes she has obstructive sleep apnea that is related to service, as a lay person, she has not been shown to have specialized training to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of sleep apnea are matters not capable of lay observation and require medical expertise to determine. Accordingly, her opinion is not competent medical evidence. The Board finds the objective evidence of record and 2017 polysomnogram report significantly more probative than the lay assertions. In sum, the preponderance of the competent, persuasive and probative evidence is against the claim for sleep apnea to include hypersomnolence, and service connection is denied. In reaching this conclusion, the Board considered the benefit of the doubt doctrine. However, as the preponderance of probative evidence is against the claim, the doctrine does not apply in this case. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 2. Whether the reduction in rating from 50 percent to 30 percent for total abdominal hysterectomy, effective June 23, 2009, was proper Service connection for residuals of a total hysterectomy was established in an April 2018 rating decision and assigned a 50 percent initial rating from June 23, 2009. A month later, in a May 2018 rating decision, the RO reduced the rating from 50 percent to 30 percent, noting it had identified a clear and unmistakable error because the Veteran did not undergo removal of both ovaries. The Veteran asserted during the October 2019 Board hearing that a 50 percent rating is warranted because both ovaries were removed while undergoing a total hysterectomy in October 2000. The medical evidence reflects conflicting findings as to whether the Veteran underwent a partial or complete oophorectomy. While an April 2015 VA examiner indicated the Veteran did not undergo a partial or complete oophorectomy, a September 2016 VA examiner indicated both ovaries were removed. Neither examination report indicates that a pelvic ultrasound or other radiographic study was performed at the time of the examination, and the record does not otherwise include diagnostic testing performed after the 2000 surgery. Accordingly, a VA examination, to include pelvic ultrasound testing or other appropriate radiographic testing, is needed. The matter is remanded for the following actions: 1. Schedule the Veteran for a VA gynecological examination to determine the nature of the service-connected total abdominal hysterectomy. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, including a pelvic ultrasound or other appropriate radiographic study, and the results reported. A copy of the ultrasound report should be associated with the record. After reviewing the claims file and examining the Veteran, the examiner should state whether the evidence shows the presence of the right and/or left ovary. The examiner should indicate whether the diagnostic testing performed in conjunction with the examination definitively confirms the examiner's findings. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.