Citation Nr: 21041403 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-51 586 DATE: July 9, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran has been diagnosed with sleep apnea; however, the weight of the evidence is against a finding that his sleep apnea was incurred in or is otherwise related to service. CONCLUSION OF LAW The criteria for an award of service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 1993 to June 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. This case was previously before the Board in November 2018 and July 2020. On both occasions, it was remanded to the agency of original jurisdiction (AOJ) for additional development. In the July 2020 remand, the Board requested that the AOJ obtain an addendum opinion regarding the nature and etiology of the Veteran's sleep apnea, specifically taking into account his contentions. In September 2020, after obtaining an addendum opinion, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service connection for sleep apnea is denied. The Veteran seeks to establish service connection for sleep apnea. He asserts that he has sleep problems, including snoring, breathing difficulties during sleep, and general tiredness, that relate back to service. 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 active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, a layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). In this case, the Veteran has essentially contended that he developed symptoms of sleep apnea while on active duty. In pertinent part, he has reported problems sleeping, general exhaustion, and snoring. Alternatively, he has raised the theory that his sleep apnea is the result of in-service chemical exposure from fire smoke, fire suppression chemicals, and fuels such as jet and diesel fuel. He also contends that his sleep apnea might be attributable to an in-service rhinoplasty that was undertaken for correction of a deviated septum. Service treatment records confirm the Veteran had a rhinoplasty performed to correct a deviated septum in 1996, while on active duty. Additionally, he complained of sleep difficulties at the time of his separation examination in April 1997. A VA medical opinion was obtained in July 2015. The reviewing physician noted that the Veteran had reported sleeping difficulties on his separation examination in April 1997, and that he had been diagnosed with obstructive sleep apnea by way of a sleep study performed in December 2014. After reviewing the claims file, the examiner opined that the Veteran's sleep apnea was less likely as not due to service. The examiner explained that complaints of disturbed sleep at service separation were more likely related to mental health issues and less likely as not due to sleep apnea. In a June 2018 brief, the Veteran's representative raised the possible theory that the Veteran's sleep issues were the result of chemical exposures in service. The representative also suggested that the Veteran's sleep apnea might be related to in-service rhinoplasty. In its November 2018 remand, the Board found that the July 2015 opinion did not adequately address the Veteran's contention of in-service snoring or the newly raised issue of whether there was a relationship between in-service chemical exposures and sleep apnea. In August 2019, the AOJ obtained an addendum medical opinion which again concluded that the Veteran's sleep apnea was less likely than not related to military service. In its July 2020 remand, the Board found that the August 2019 addendum opinion was not in compliance with the remand directives. Specifically, the Board noted that the examiner seemed to base her opinion almost exclusively on the Veteran's fluctuation in weight. It was noted that there was no discernable mention of the Veteran's contentions of chemical exposure, in-service snoring, or nasal surgery that was performed while on active duty. In August 2020, the AOJ obtained another medical opinion, which again concluded that the Veteran's sleep apnea was less likely than not related to military service. The examiner stated that she reviewed the file. She offered an unfavorable nexus opinion, attributing the Veteran's complaints of in-service sleeping difficulties to mental health issues, rather than sleep apnea. The examiner noted that sleep apnea was the result of obstruction of the upper airway, and that it must be diagnosed by a sleep study. The Veteran's sleep apnea was not confirmed by a sleep study until December 2014, many years after service. The examiner acknowledged the Veteran's contention regarding in-service chemical exposures but noted that chemical exposures were not established causes of sleep apnea. She thus concluded that it was not at least as likely as not the cause of his sleep apnea. The examiner also acknowledged the Veteran's complaints of in-service snoring, as well as his history of in-service nasal surgery. In that regard, the examiner noted, in effect, that snoring can occur for a number of reasons, that many people who snore do not have sleep apnea, and that, all things considered, it was less likely than not in this particular case that the Veteran's sleep apnea, first diagnosed after service, was related to his reports of in-service snoring. As to the in-service nasal surgery, the examiner further noted that ear, nose, and throat examination in 2015, around the time of the Veteran's sleep apnea diagnosis, did not document upper airway obstruction. Rather, he had an obese neck that was as likely as not related to post-service weight issues. The Board finds the opinion of the August 2020 VA examiner highly probative and assigns it significant weight. The opinion was based on a review of the Veteran's record and it took into consideration all of the theories of entitlement raised by the Veteran and his representative. Her findings are consistent with the record and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). There is no other medical evidence suggesting a link between the Veteran's sleep apnea and his service. While the Veteran is competent to report symptoms he experienced in service, to include breathing problems during sleep and snoring, a determination as to whether his current sleep apnea, diagnosed many years after service, is related to service, is a complex matter requiring medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Here, there is no indication on the record that the Veteran has the training or specialized knowledge necessary to render an opinion on such a matter. In light of the foregoing, the Board must find that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.