Citation Nr: 21041487 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 19-23 858 DATE: July 9, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1958 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for sleep apnea. On his August 2019 VA Form 9, the Veteran requested a Board videoconference hearing. In an attached cover letter, the Veteran's attorney asked that the hearing be scheduled as soon as possible. The Veteran was scheduled for a Board video hearing in October 2019. Just prior to the hearing, the Veteran's attorney requested a postponement citing an emergency with the Veteran's family. In March 2021, the Veteran was again scheduled for a Board hearing to be held in June 2021. In May 2021, the Veteran's attorney canceled the hearing and asked that the Board consider the appeal based on the evidence of record. Service connection for obstructive sleep apnea VA received the Veteran's claim for service connection for sleep apnea in May 2018. To date, neither the Veteran nor his attorney has offered any specific argument in support of the claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In addition, 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). To establish direct service connection, there must be the existence of a present disability; 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current sleep apnea disability that began during service or is at least as likely as not related to an in-service injury or disease. The Veteran's service treatment records are silent for complaints, diagnosis, or treatment related to sleep apnea. A December 1963 treatment record reflects his report of feeling nervous and anxious and having trouble sleeping; he denied any other symptoms. The examiner prescribed Librium and advised the Veteran to return as needed. In reports of medical history at enlistment in August 1958, reenlistment in April 1961, and separation in April 1964, the Veteran denied currently or ever having frequent trouble sleeping. On separation examination in April 1964, his mouth and throat and lungs and chest were reported as normal on clinical evaluation; his weight was recorded as 176 pounds. A December 1999 consultation report by a private pulmonologist, K. Holm, M.D., reflects that the Veteran was referred by his primary care physician, Dr. Miller, for symptoms of dyspnea (shortness of breath) and chest pain that had been present for more than one year. He described having shortness of breath at rest, with exertion, and at night, waking every hour and a half or two hours due to shortness of breath or left chest discomfort. He also complained of daytime fatigue, daytime somnolence, excessive sleepiness, and somnolence while driving. He reported a past medical history that included chronic obstructive pulmonary disease (COPD) and pulmonary asbestosis. He disclosed a 20-pack year smoking history and having quit smoking in 1979. Examination findings included mildly obese appearance and weight recorded as 234 pounds. Dr. Holm noted that the Veteran's primary care physician had already ordered a polysomnogram to evaluate the reports of somnolence, snoring, and witnessed apneic events, adding that he apparently underwent polysomnogram testing a year earlier as well. The impression of a January 2000 polysomnography report was mild to moderate obstructive sleep apnea. The report indicated that positive pressure ventilation by CPAP and BiPAP had been poorly tolerated. During a follow-up visit later that month, Dr. Holm reviewed the results of the sleep study with the Veteran. Given his complete intolerance of the CPAP mask, Dr. Holm recommended that he focus on exercise and weight loss to treat his obstructive sleep apnea. Subsequent private and VA treatment records reflect ongoing evaluation and treatment for obstructive sleep apnea. Having considered the medical and lay evidence of record, service connection for obstructive sleep apnea is not warranted. The first criterion necessary to establish service connection for disability on a direct basis is met because competent medical evidence demonstrates a current obstructive sleep apnea disability, confirmed by a January 2000 sleep study. However, manifestations of sleep apnea during active duty are not shown by the medical or lay evidence of record. The only documented in-service problem with sleep occurred in December 1963 in the context of anxiety, for which the Veteran received medication. Consistent with these complaints, the evidence of record documents ongoing symptoms of anxiety and sleep impairment after service associated with the Veteran's service-connected posttraumatic stress disorder (PTSD) related to his duties as a military police officer. In contrast, his service treatment records indicate he did not report symptoms he experienced contemporaneously near the time of his diagnosis of sleep apnea in January 2000, including fatigue, somnolence, snoring, or witnessed apneic events. In summary, there is no competent or credible medical or lay evidence demonstrating that the current sleep apnea disability, which was diagnosed more than 35 years after separation from service, began in service or is otherwise related to disease or injury during military service. Finally, the Board recognizes that the Veteran was not afforded a VA examination in connection with his claim. However, in the absence of probative evidence of in-service symptoms or manifestations of obstructive sleep apnea, an examination to obtain a medical opinion is not required. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). (Continued on the next page) As the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.