Citation Nr: 21031440 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-25 144 DATE: May 21, 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 during service or until many years thereafter and it is not caused or aggravated by a service-connected disability. 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, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1967 to January 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Board notes that the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge in March 2020. Unfortunately, due to technical difficulties, the recording of the hearing was lost, and a transcript of the hearing is unavailable. The Veteran initially expressed his desire for another hearing, but ultimately waived his hearing request in an October 2020 correspondence. The Board has reviewed this case in great detail. In this regard, it is important for the Veteran to understand that the key issue in this case is a medical determination. Entitlement to service connection for sleep apnea The Veteran contends that his currently diagnosed sleep apnea had its onset during service or is otherwise related to active service more than 50 years ago. 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. § 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 C.F.R. § 3.303 (d). Other specifically enumerated disorders 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, in order 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). Initially, the record shows the Veteran being diagnosed with sleep apnea in 2016, which is 46 years after separation from service. See January 2016 Sleep Study. Additionally, service treatment records (STRs) show the Veteran complained of fatigue and was diagnosed with psychosomatic fatigue. The Veteran was also treated for pharyngalgia and other throat issues. Moreover, the Board finds that the Veteran is both competent and credible to report events he experienced in service as well as observable manifestations of his disability, to include the claim that he had fatigue in service. See Davidson, 581 F. 3d at 1316. However, STRs including the January 1970 separation examination are negative for symptoms, complaints, history, or diagnosis of sleep apnea. See Colvin, supra. In fact, while at the January 1970 separation examination, the Veteran reported ear, nose, and throat trouble; however, he did not report a problem with snoring or other sleep apnea symptomatology and on examination it was opined his nose, sinus, mouth, and throat examinations were normal despite the problems reported by the Veteran. Id. 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 documented psychosomatic fatigue and symptoms seen on a few occasions while on active duty. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). In this case, the detailed records in service provide particularly negative evidence, overall, against the claim. Next, the record does not show that the Veteran had a continued problem with sleep apnea in and since service more than 50 years ago. In fact, as noted above, the January 1970 separation examination it was opined his nose, sinus, mouth, and throat examinations were normal: providing highly probative evidence against the claim. Likewise, and more importantly, the post-service is negative for any complaints, diagnoses, or treatment for sleep apnea until, at the earliest, 2016-over 46 years after his 1970 separation from active duty. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (b); Also see January 2016 Sleep Study. This fact would seem to support the findings of the in-service examiner who provided evidence against the claim, as noted above. Given this record, the Board finds that the service medical records and the post-service medical evidence provides highly probative evidence, overall, against this claim. 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 documented psychosomatic fatigue and symptoms seen on a few occasions while on active duty. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (b). For the reasons noted above, the Board finds that the post-service medical records provide highly probative evidence against this claim. 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. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (d); 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). In this regard, the February 2021 VA examiner opined that his sleep apnea is not due to his military service. Moreover, the Board finds this opinion the most probative evidence of record because it was provided after a review of the record on appeal, an examination of the Veteran, it is supported by ciation to evidence found in the record, and it is not contradicted by any other medical evidence of record. 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 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). The Board also finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the current sleep apnea). See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for sleep apnea. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Lastly, the Board also finds that the preponderance of the evidence shows that the Veteran's current sleep apnea is not caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; also see Allen, supra; Wallin, supra; Ward, supra. In this regard, the March 2021 VA examiner opined, in substance, that his sleep apnea is not caused or aggravated by his service-connected PTSD. Moreover, the Board finds this opinion the most probative evidence of record because it was provided after a review of the record on appeal, it is supported by ciation to evidence found in the record, and it is not contradicted by any other medical evidence of record. See Owens, supra; Guerrieri, supra; Colvin, supra. The Board again finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what relationship, if any, his PTSD has with his current sleep apnea). See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of secondary service connection for sleep apnea. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.310. Therefore, the Board finds that the claim of service connection for sleep apnea is denied. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. (Continued on the next page) In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.