Citation Nr: 21041045 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-00 581 DATE: July 7, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Veteran's OSA was not incurred in or a result of his active-duty service and is not proximately due to or the result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to April 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of March 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board previously remanded this case for further development, including a VA examination. See January 2019 Board Decision at 5-7. After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives and will proceed to adjudicate the Veteran's claim on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). Service connection generally requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that his OSA was incurred during the last five years of his active-duty service. See January 2019 Board Decision at 6; see also March 2015 Notice of Disagreement (NOD) at 2; see also January 2017 Correspondence (providing statement of Veteran's spouse as to observation of symptoms). Because the Veteran and his spouse are competent to report symptoms capable of lay observation, such as snoring and daytime fatigue, but are not competent to diagnose OSA from such symptoms, the Board remanded this issue for a VA examiner's opinion. See January 2019 Board Decision at 7 (requesting an opinion addressing direct and secondary theories of service connection); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (providing that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). The VA examiner reviewed the claims file and diagnosed the Veteran with OSA based in part on a sleep study conducted in December 2012. See December 2019 VA Examination Report at 1. As noted above, the Veteran and his spouse assert symptoms of daytime fatigue and snoring during his active-duty service. As an initial matter, the Board therefore finds that the first and second Shedden factors have been met. However, the VA examiner opined that it is more likely than not that the Veteran's OSA was not incurred in or a result of his active-duty service, nor is it proximately due to or the result of his service-connected disabilities. In reaching this conclusion, the examiner opined as follows: The Veteran was not diagnosed with OSA while on active duty. [He] has had two evaluations for sleep apnea. Recent sleep study in [December] 2012 did meet criteria for OSA. Polysomnogram done at Hampton VAMC [in November 2006] DID NOT meet AASM criteria for diagnosis of sleep apnea. The risk of developing sleep apnea increases with age due to age-related changes of the soft tissues of the upper airway losing tone and being more susceptible to collapse during supine sleep positions and REM. Initial evaluation for [OSA] in [November] 2006 was negative for sleep apnea 5 years after retiring from [active-duty] service. Lay statements of support were considered[,] however, OSA was objectively ruled out in [November] 2006. It is possible to have a primary snoring disorder in the absence of OSA. There is no evidence that [the Veteran's OSA] has been aggravated by any [service-connected] disabilities (right shoulder DJD, right heel spur, stress fracture left distal tibia, hypertension, GERD). [There is no] medical nexus of aggravation to any of these [service-connected] conditions. See December 2019 VA Medical Opinion at 1-2 (capitalization in original); see also March 2014 Rating Codesheet at 1. Because the VA examiner explained the importance of the varying sleep study results in forming her opinion, the Board assigns her conclusion substantial probative weight. "[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight... if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran and his spouse are competent to report symptoms capable of lay observation, such as snoring and daytime fatigue. See Jandreau, 492 F.3d at 1376. However, whether such symptoms are indicative of OSA is a determination requiring medical expertise. Id. The Board notes the Veteran's assertion that his VA treating physician was "absolutely stunned by the result of the [negative] sleep study." See February 2020 Correspondence; see also id. (conceding that symptoms worsened during interval between two sleep studies). However, even if this assertion is assumed to accurately reflect the treating physician's emotional response, it does not contradict the objective validity of the November 2006 sleep study's results as a diagnostic tool. Nor does it contradict the VA examiner's opinion, which as discussed above uses the variation between the November 2006 and December 2012 sleep studies to support the conclusion that it is more likely than not that the Veteran's OSA is due to age-related changes of the upper airway than to his active-duty service. Because the Board not found sufficient competent evidence to contradict the VA examiner's opinion, it concludes that the third Shedden factor has not been met. The assignment of service connection for OSA is therefore not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.