Citation Nr: 21041525 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-04 696 DATE: July 9, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT 1. The preponderance of evidence shows that the Veteran's obstructive sleep apnea was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The Veteran's obstructive sleep apnea is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1986 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the issues on appeal for additional development in November 2018. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Obstructive Sleep Apnea General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran claimed entitlement to service connection for obstructive sleep apnea in December 2013, saying that his service-connected tinnitus caused his sleeping problems. In the alternative, the Veteran also posited that his insomnia caused his sleep apnea. The Veteran's service medical records are silent for any complaints or issues involving any kind of sleep disorder or sleep disturbance. The Veteran had a sleep study performed at a private hospital sleep medicine clinic in October 2013. This study documented an apnea/hypopnea index of 6.6, with worsening in REM sleep associated with hypoxemia and disrupted sleep architecture. Arousals during respiratory events occurred at a rate of 14.8 an hour. Obstructive sleep apnea was diagnosed in the Veteran. A CPAP (continuous positive airway pressure) machine was prescribed and a prescription drug for the insomnia was also directed. The Veteran indicated that his tinnitus awakens him from sleep early several times a week. The Veteran received follow-on care from that same private sleep clinic in December 2013, and a treatment note records the Veteran's comment that his use of the CPAP machine on a regular basis had made the tinnitus "more mild and tolerable." The Veteran's spouse submitted a lay statement in January 2014 saying the snoring and worsening of the sleep apnea and insomnia had begun over the previous 7-8 months. The claims file contains a note from the Veteran's primary care provider in July 2019 noting that the Veteran continued to use his CPAP machine and now denied hypersomnia, fatigue, and daytime sonolucency. This provider also noted the Veteran's insomnia is helped by the prescription drug previously prescribed. In September 2019, the Veteran received a VA examination for his sleep apnea. This examiner continued earlier diagnoses and treatment for sleep apnea, to include the Veteran's complaints about his insomnia and his tinnitus were affective his sleep. Persistent daytime hypersomnolence was noted. The examiner noted the Veteran was morbidly obese. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's diagnosed sleep apnea was incurred in service. This examiner also opined that the sleep apnea was not caused by or aggravated by his service-connected tinnitus. The examiner's rationale was that the gap in time between service separation in 1990 and the first complaints of sleep apnea in 2013, even allowing for a delay between initial symptoms and then seeking medical treatment, reflected a lack of nexus between service and onset of symptoms. The examiner also noted that the Veteran's tinnitus had existed for many years before the sleep apnea had been diagnosed, and reasoned that if the tinnitus caused the sleep apnea, the apnea would have had a much earlier onset. The examiner also noted that there is no medical relationship between sleep apnea and tinnitus, in that the former occurs when the throat muscles relax and then block the airway during sleep, while tinnitus is a sensorineural disease with a very different pathology and etiology. As part of the sleep apnea claim, because the Veteran had claimed that his insomnia was related to his sleep apnea, the Veteran also received in September 2019 a VA mental disorders examination, which diagnosed insomnia disorder. The VA examiner here provided an opinion regarding secondary service connection of the insomnia and the Veteran's claimed sleep apnea, saying it was less likely than not, less than 50 percent probability, that the Veteran's insomnia and sleep apnea were related to his service-connected tinnitus. The examiner's rationale was that there was insufficient evidence to substantiate Veteran's theory that his insomnia was the result of sleep apnea or tinnitus, even though the Veteran had reported improvement in both symptoms of both insomnia and tinnitus after using his CPAP machine for his sleep apnea. The examiner pointed out the lack of pathology relationship between a sleep disorder with a physical pathology such as sleep apnea with its airway constrictions, with the sensorineural nature of tinnitus, and that while symptomatic improvements in one condition may occur, that there is only a chance of minimal correlation between any sleep disturbance and tinnitus because of the differing pathological origins of each condition. In March 2020, uploaded to the claims file in April 2020, VA provided an addendum opinion to clarify the previous relationships between the Veteran's claimed sleep apnea, insomnia, and his service-connected tinnitus. The same VA psychologist examiner from the previous September 2019 insomnia examination and opinion offered an additional opinion that it was less likely than not that the Veteran's diagnosed sleep apnea with insomnia was caused or aggravated by the Veteran's service-connected tinnitus. The examiner's rationale was that first, tinnitus does not cause and does not aggravate sleep apnea. Tinnitus can cause sleep problems, resulting in less sleep, but it does not cause sleep apnea, which is a very different pathology caused by anatomic obstruction of the upper airways at sleep. Here in this Veteran, per the examiner, the Veteran's sleep apnea is improved by his CPAP machine use, as is medically expected, and any correlation to improvements in the quality of sleep relate to his CPAP use. The perception of better rest may result in the perception that his tinnitus is improved, but there is no medical relationship in the pathology between tinnitus and the Veteran's sleep apnea. The Board finds all the VA examination reports and opinions to be of great probative value, along with both the VA treatment notes and private treatment regarding the Veteran's claimed sleep apnea disability. Indeed, the VA examiners considered the Veteran's contention, the claims file, and clinical medical evidence before providing a negative opinion for direct and secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners' negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran, via the supplied statements, is competent to testify about his symptoms relating to his claimed sleep apnea condition. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of his sleep apnea. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board acknowledges the Veteran's statements that his sleep apnea could be related to service. However, the Board notes that the Veteran's service treatment records, to include reports of medical history, are silent for any treatment or complaint of any sleep condition or distress during active or reserve service and up until August 2013, over 23 years after active service ended. A negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes there are no other statements by any medical provider, VA or private, that are in favor of a possible nexus to service for the Veteran's claimed sleep apnea disability. Upon review of the record, the Board concludes that entitlement to service connection for sleep apnea is not warranted. The Board notes a current diagnosis of the sleep apnea disability in August 2013 following the private sleep apnea study, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. However, the Veteran's service medical records, to include all examinations, are silent for any existing sleep or related condition at the time of separation, and, and there is no competent evidence to tie the current assertion to any in-service disease or injury. Two VA examiners have discussed all of the Veteran's sleep apnea symptoms and all possible risk factors raised by the record, and opined that sleep apnea is not related back to active service. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. (CONTINUED ON NEXT PAGE) Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed sleep apnea disability was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a sleep apnea disability on a direct or secondary basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.