Citation Nr: 21031743 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 11-16 332 DATE: May 24, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for a disorder manifested by fatigue is denied. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea was not incurred in service, and is not otherwise causally or etiologically related to service or a service-connected disability. 2. A disorder manifested by fatigue was not incurred in service, and is not otherwise causally or etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a disorder manifested by fatigue have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to April 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters have been before the Board on several occasions. First, in April 2013, when they were first remanded for the scheduling of a Board hearing. The claims were again remanded in July and October 2014, respectively, to schedule a Board hearing; in May 2015, to obtain the Veteran's outstanding medical treatment records; in November 2017 and May 2019, for VA examinations and lack of compliance with the Board's prior remand directives, in November 2019, for due process compliance and notification to the Veteran for his scheduled VA examinations, and most recently, in December 2020 for lack of compliance with the Board's prior remand directives. In November 2014 and April 2015 statements, the Veteran withdrew his request for a Board hearing, and he has not requested any additional Board hearing post-remand. 38 C.F.R. § 20.603 (formerly 20.704); Quinn v. Wilkie, 31 Vet. App. 284 (2019). As such, the Board may proceed with a decision on the merits without a Board hearing. As to the matters adjudicated below, neither the Veteran nor his agent has raised any issues with VA's duty to notify or VA's duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). 1. Entitlement to service connection for sleep apnea is denied. The Veteran seeks to establish service connection for obstructive sleep apnea (OSA). The Veteran's service treatment records (STRs) are unremarkable and silent for complaints of, treatment for, or diagnosis related to OSA or any sleep related disorder. In a February 1988 separation medical history report, the Veteran specifically denied frequent trouble sleeping. Post-service treatment records confirm a diagnosis of OSA. A September 1993 private treatment note indicates the Veteran was given an order for a sleep study. In a December 1994 letter, Dr. G, stated the Veteran was undergoing evaluation for disorder of sleep and he should be placed on a regular schedule, working daytime hours until that assessment was completed, and treatment was instituted. In a January 2003 private treatment note, the Veteran denied the presence of sleeping problems. In a July 2006 VA progress note, the Veteran lay reported sleep apnea since the early 1980s. In an April 2008 VA progress note, the provider noted the Veteran's reported history of OSA and that he had a machine that was broke. The provider noted he was not diagnosed, and the machine was not furnished, by the VA. An April 2009 sleep study indicated that the Veteran had a history of snoring, fitful sleep, obesity, and insomnia. The diagnosis included severe OSA, obesity, and moderate snoring. The Veteran underwent another sleep study in August 2017 which also showed OSA and nocturnal hypoxemia. In a March 2014 statement, the Veteran reported he has symptoms of OSA every day. He stated he fights to stay awake during the day and he could not get restful sleep. He stated that during service he began to rapidly gain weight and was unable to stay physically fit, which eventually led to his discharge for failure to meet weight standards. During a March 2019 VA examination, the Veteran reported that he noticed a sleep issue around 1983 while in Germany, which was his first duty assignment. He requested to go to sick call because of his tiredness. He was told he could not go to sick call as he likely had jetlag. He continued to feel really tired and fatigued. He stated that a person on duty heard him snoring down the hall and told him "he was calling them cows." A lot of times during his lunch break he would go to his room to nap. He now wakes at night and has difficulty falling back to sleep. The Veteran reported having an in-clinic sleep study performed in Indiana around 1993 and was issued a CPAP machine around the same time. The examiner indicated that this study was not available for review. The examiner referred to the August 2017 sleep study. After a physical examination, the diagnosis was OSA. The examiner determined that OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. There was no diagnosis or treatment for OSA during service and the Veteran's OSA was not caused by any in-service event or disease. The VA examiner explained that sleep apnea is an obstructive process of the oral-pharyngeal airway. While Veteran was noted to be obese during service, which is a risk factor for OSA; the VA examiner explained obesity is a separate and unrelated entity to the OSA, as it does not cause the physical airway obstruction. The Veteran underwent an additional VA examination in December 2019. The Veteran provided the same history as the March 2019 VA examination. The diagnosis was OSA. After the physical examination, the examiner opined that sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran's medical records did not support that the Veteran's OSA was related to a period of time in the service, and his condition was less likely than not incurred in or caused by/or manifested to a compensable degree within one year of separation from service. The examiner noted that the Veteran left the service in 1988 and there were no reports or diagnoses by any medical personnel of OSA until 1993, which is 5 years after service. Subsequent to a December 2020 Board remand, the AOJ obtained an additional VA opinion dated in February 2021. The examiner opined that the Veteran's claimed OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that a thorough review of the Veteran's STRs did not reveal any objective evidence of OSA during service. The examiner indicated that the Veteran was deemed competent to report a history of symptomatology since service, such as feeling fatigued. However, the Veteran was not capable of diagnosing those symptoms or of establishing an etiological basis for the symptoms. There was no in-service record of the Veteran having any difficulty performing the duties of his military occupational specialty or performing physical training due to sleep apnea or fatigue. There was no in-service record of a profile status for sleep apnea or fatigue during service. The Report of Medical History completed by the Veteran for his separation exam indicated no frequent trouble sleeping. The Veteran was noted to be overweight during service; however, the VA examiner explained that the reported symptoms of fatigue and being overweight were not diagnostic of OSA. While these symptoms are often associated with sleep apnea, the VA examiner explained that the presence of the symptoms alone is insufficient to establish an etiology or a diagnosis of OSA. Because fatigue and being overweight are associated with numerous medical conditions, OSA must be established by a sleep study (polysomnography). This is the central and critical aspect in establishing the presence of OSA. There was no evidence of a diagnosed, or diagnosable OSA during service. A review of the medical record post service shows that the Veteran was being evaluated for possible sleep apnea in 1993-1994, with no sleep study of record. There was no record verifying a clinical diagnosis of OSA until 2009, when the VA records confirm a diagnosis of OSA. The VA examiner noted that the Veteran suffered a stroke in 2002 and stated that a history of OSA would be pertinent and identified as a risk factor for a stroke. However, the only risk factors identified for the stroke were the Veteran's nonservice-connected hypertension and diabetes as well as the Veteran's non-compliance with treatment of those conditions. The VA examiner found no objective support for OSA prior to 2002. Based on this history, the examiner found there is no established medical nexus for OSA related to an injury during service. Upon a complete review of the electronic claims file, the Board finds that service connection for OSA is not warranted. First, there is no evidence of OSA or other sleep disorders in service. As noted above, the Veteran's STRs are silent for any complaints of, treatment for, or diagnosis related to sleep apnea or any sleep related disorder. Regarding his reports of continuity of symptoms since service, the Board finds the Veteran's affirmative denial of frequent trouble sleeping in the February 1988 Report of Medical History to be more probative than later statements rendered many years after service in the context of seeking service-connected VA compensation benefits. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that the contemporaneous evidence has greater probative value than history as reported by a claimant). Second, there is no medical evidence in the record that links the Veteran's claimed OSA to an incident of the Veteran's active military service. Taken together, the March and December 2019 and February 2021 VA examiners' opinions establish that the Veteran's OSA is less likely than not related to an in-service injury, event, or disease. The examiners' combined opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No contrary opinion is of record. The Board recognizes that in an April 2019 statement, the Veteran alleged that his hypertension caused weight gain during service which caused his OSA. However, the Board denied the claim for service connection for hypertension in December 2020. As such, secondary service connection is not warranted. While the Veteran is competent to report symptoms such as fatigue and snoring, he is not competent to provide an opinion linking any OSA diagnosis to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert, supra. The Veteran's appeal seeking service connection for obstructive sleep apnea is denied. 2. Entitlement to service connection for a disorder manifested by fatigue is denied. The Veteran seeks to establish service connection for a disorder manifested by fatigue. The Veteran's STRs are unremarkable and silent for complaints of, treatment for, or diagnosis related to fatigue. In a February 1988 separation medical history report, the Veteran denied dizziness, depression, and frequent trouble sleeping. Post-service treatment records include information relevant to the claim. In a January 2003 private treatment note, the Veteran denied excessive fatigue. An April 2009 private sleep study included a diagnosis of obesity and unknown daytime sleepiness. In an April 2012 VA progress note, the Veteran complained of generalized fatigue. A June 2017 VA progress note indicated problems of fatigue with insomnia associated with sleep apnea. In a March 2014 statement, the Veteran reported chronic fatigue symptoms which he claimed to experience every day. He described his symptoms as exhaustion, sluggishness, very low energy, and being physically drained, even at the beginning of the day. During a March 2019 VA examination, the examiner reported no current diagnosis of chronic fatigue disorder. The Veteran reported a history in which he went to Germany around 1984, and he was tired all the time. He stated he wanted to seek care because of feeling tired and fatigued but was told he likely had jetlag. He reported sleeping during lunch breaks, and after work, he would return to bed. He later had a sleep study done through the VA in Indiana. He was allegedly diagnosed with OSA and issued a CPAP machine. He reported that some days he feels okay and other days he is tired. After a physical examination, the examiner determined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran has multiple contributing factors for his fatigue, including OSA, depression, and anemia. As such, the examiner found that fatigue is likely a symptom of the Veteran's multiple nonservice-connected disorders. A VA examiner reviewed the Veteran's claims file and provided another opinion in September 2020. The examiner opined that the Veteran's claimed fatigue was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran reported over the years that he was fatigued since being in the service. Review of STRs were silent on any condition manifesting with chronic fatigue during that time, or within a year following his separation from service. The entrance physical examination from 1983 was normal with a weight listed at 166lbs. The exit physical dated in February 1988 is silent for a history of fatigue or a comment from the medical officer on a medical condition causing fatigue. His weight at separation was 214lbs. The examiner reviewed the STRs but was unable to find any evidence of in-service fatigue, and such a complaint was not documented until years after separation from service. The Veteran reported a history of being tired all the time in 1984, while in Germany, with daytime drowsiness and need for nap. This was subjectively attributed to jetlag and not evaluated then. Records show an order for a sleep study dated September 1993 to evaluate a sleep disorder. The examiner noted that it is unknown if this testing was actually done, as no records were found. The Veteran was diagnosed and treated for OSA in 2017 and showed subsequent improvement with CPAP. However, the Veteran noted in 2019, that he still had daytime hypersomnolence and felt drowsy at the wheel with long distance driving. The first post-service records available are from September 1991 and are silent on a symptom of "fatigue" or a disorder causing fatigue. In January 2002, he was admitted to the hospital for a right CVA. He was followed at that time for diabetes and uncontrolled hypertension, and his hematocrit and hemoglobin were in the low range of normal. He had another CVA in June 2019. This Veteran was never diagnosed with chronic fatigue syndrome in or out of service. The examiner opined the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. Upon review of the above evidence, the Board finds that service connection for a disorder manifested by fatigue is not warranted. First, there is no evidence of a disorder manifested by fatigue in service. As noted above, the Veteran's STRs are silent for any complaints of, treatment for, or diagnosis related to fatigue. At service separation, the Veteran affirmatively denied symptoms such as dizziness, depression, and frequent trouble sleepingall symptoms he has attributed to his claimed fatigue disability. Again, the Board places greater weight on the contemporaneous in-service treatment records than the Veteran's later statements regarding persistence of symptoms since service. See Curry, supra. Second, there is no medical evidence in the record that positively links the Veteran's fatigue to an incident of the Veteran's active military service. Taken together, the March 2019 and September 2020 VA examiners' opinions establish that the Veteran's fatigue is less likely than not related to an in-service injury, event, or disease. The examiners' combined opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. No contrary opinion is of record. The Board recognizes that the VA examiner suggests the Veteran's fatigue is related to his OSA; however, as noted above, the Board has denied the claim for service connection for OSA. As such, secondary service connection is not warranted. While the Veteran is competent to report symptoms such as fatigue, he is not competent to provide an opinion linking any diagnosis to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana, 24 Vet. App. at 435; Jandreau, 492 F.3d at 1377. Therefore, the Veteran is not competent to provide an etiology opinion in this case. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a disorder manifested by fatigue. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert, supra. The Veteran's appeal seeking service connection for a disorder manifested by fatigue is denied. M. GALANTE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.