Citation Nr: 21042273 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-37 071 DATE: July 12, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea did not manifest in service and is not attributable to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to January 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision. In August 2014, the Veteran filed an application for reconsideration for his sleep apnea claim. The previous denial of service connection for sleep apnea was confirmed and continued in an October 2015 rating decision. In September 2015, the Veteran filed a notice of disagreement (NOD). In June 2017, a statement of the case (SOC) was issued. In June 2017, the Veteran perfected his appeal (via a VA Form 9). The appeal was certified to the Board in December 2017. In March 2019, the Board remanded the claim for further developmentto schedule a VA examination and obtain a medical opinion as to the nature and etiology of the Veteran's sleep apnea. The Board finds that the November 2019 medical opinion issued in connection with the Veteran's claims for service connection for sleep apnea is adequate. Thus, the Board determines that there has been substantial compliance with the March 2019 remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). Service Connection Service connection may be granted for disability resulting from 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 a right to compensation for a present disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). Entitlement to service connection for sleep apnea The Veteran contends that service connection is warranted for sleep apnea. In his Substantive Appeal, the Veteran contended that he had sleep apnea while in service and that his in-service symptoms of snoring and daytime sleepiness were early manifestations of his current sleep apnea. The Veteran has also contended that his sleep apnea was caused by his in-service exposure to toxic fumes. The Veteran's service treatment records are silent as to complaints, treatment, or a diagnosis of sleep apnea. In Reports of Medical Examination, dated November 1978, February 1979, June 1981, November 1984, February 1988, November 1991, October 1992, October 1993, and August 1996, the Veteran's lungs and chest were deemed clinically normal. In Reports of Medical History, dated February 1979, December 1974, June 1981, November 1984, February 1988, November 1991, October 1993, and August 1996, the Veteran denied having or having had shortness of breath; frequent or severe headaches; or frequent trouble sleeping. In an October 1992 Report of Medical Examination, the Veteran denied shortness of breath and frequent trouble sleeping. A service treatment note, dated December 1986, shows that the Veteran presented with complaints of sharp right-sided chest pain when breathing hard. A June 2014 VA examination reveals a diagnosis of obstructive sleep apnea, with an onset date of 2014. At the time of the examination, the Veteran stated that he had a long history of snoring, to include while in service, but that he never reported it in service. He also stated that he uses a C-Pap machine. The examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by service. The rationale provided was that there was no new relevant information in the record aside from the Veteran's long-standing history of snoring, which was undocumented in the record. The examiner also stated that the Veteran was not diagnosed with sleep apnea until 2014, seventeen years after service. Further, the examiner noted that in the absence of any complaints of sleep apnea while in service, a connection to his military service cannot be established. In a September 2017 buddy statement, former Colonel D.B. stated that the Veteran served under his command from 1979 to 1981 while stationed in Germany. He further stated that the Veteran slept in close proximity to him and that he heard the Veteran snore and stop breathing, on occasion, which caused him to wake himself up. He also stated that he observed that the Veteran displayed severe sleep disorders and sleepless nights and that his sleep disorder grew in severity over the years. Further, D.B. stated that he believed the Veteran's sleep apnea was a result of his unpredictable and long work regimen due to his duties as both an aircraft crew chief and aviation quality control supervisor. A private examiner also submitted a DBQ in October 2017, which reflected that the Veteran has a current diagnosis of obstructive sleep apnea. However, the examination was incomplete and unsigned. In an October 2018 statement, the Veteran contended that he was exposed to toxic fumes as a result of a hangar fire. He stated that personnel from the 223rd Aviation Battalion were able to remove three of four helicopters before the fire consumed the entire hangar and, in doing so, he stated that he did not wear a mask and subsequently inhaled toxic fumes which he believed led to breathing issues and caused or contributed to his sleep apnea. He also stated that one of the helicopters was made of magnesium and other alloys which produced toxic fumes. The Veteran also submitted buddy statements in which fellow servicepersons attested to their recollections of a hangar fire in service. In further support of his claim, an official accident report, associated with the claims file in October 2018, reveals that there was a hangar fire in December 1980 in the Stuttgart Army Airfield in the Republic of Germany. Again, in March 2019, the Board determined that there was no opinion of record as to whether the Veteran's sleep apnea was the result of toxic fumes reportedly incurred during active service. On remand, the Board specifically requested that an examiner determine the nature and etiology of the Veteran's sleep apnea, with consideration of the Veteran's service treatment records, lay statements, and post-service treatment records. In November 2019, the Veteran underwent a Sleep Apnea DBQ. The examiner noted that the Veteran had obstructive sleep apnea. At the time of the in-person examination, the Veteran reported that he was exposed to possible toxic fumes during service as a result of a hangar fire. The Veteran also reported that he snored loudly during service and was consistently moved from tent to tent so that others could sleep. He further noted that he thinks that he woke gasping and choking at times. The examiner opined that it was less likely than not that the Veteran's sleep apnea was caused by, related to, or permanently aggravated beyond the natural progression of the condition by any event during military service, to include possible exposure to toxic fumes or snoring. In detailed rationale, the examiner reasoned that the service treatment record showing intercostal muscle sprains with pain on breathing was not evidence of sleep-disordered breathing. The examiner further noted that the weight of medical literature supports that the natural progression of toxic exposure is for all symptoms to be present and at worst severity initially at the time of exposure, with symptoms rapidly declining in severity after the exposure is terminated. The examiner acknowledged the Veteran's reports and the buddy statements relating to the hangar fire but noted that such occurred 34 years prior to the subsequent diagnosis of sleep apnea. The examiner noted that there was no evidence consistent with burning magnesium and that the evidence of record and the Veteran's stated history do not support any other toxic exposure because there were no contemporaneous signs or symptoms. Contrary to the Veteran's assertions, the examiner reported that the weight of the medical literature supports that obstructive sleep apnea is a condition in which loose, floppy tissues in the throat occlude the passage of air during the relaxation of sleep. The examiner further noted that sleep apnea is a biomechanical condition and that intercostal muscle strains are not part of the etiology. The examiner also noted that an inconsistent sleep schedule does not cause sleep apnea. Further, the examiner acknowledged the Veteran's belief that his sleep apnea was apparent during service. Here, the examiner noted that sleep apnea can only be diagnosed by a formal sleep study, noting that snoring and gasping for air can be signs and symptoms of other conditions of the nose and sinuses and are not reliably linked to sleep apnea. Lastly, the examiner stated that the weight of the medical literature supports that sleep apnea develops slowly and frequently takes up to several years to become clinically significant enough for the excessive daytime sleepiness to lead to a request for medical care. The examiner noted that at the time of his diagnosis, the Veteran had a polysomnogram-documented apnea hypopnea index of 32.3 events per hour and that, at this index, one could not posit that the Veteran's sleep apnea had been present for at least 17 years since separation and much less for 34 years since the hangar fire. In assessing the nexus evidence, the Board has considered the Veteran's statements, as well as the buddy statement authored by D.B, and the evidence of the hangar fire. However, the lay statements are insufficient to establish that the Veteran's sleep apnea is related to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran and other lay statements are competent to report observable symptoms, such as exposures, tiredness, gasping, and snoring, but they are not competent to determine the cause of the Veteran's symptoms or the etiology of the diagnosed disability. Such a determination cannot be made based on mere observational symptoms, it requires medical training and knowledge which, as a lay person, they do not have. Further, the Veteran and D.B. are not competent to diagnose sleep apnea. This disability requires medical testing and training to diagnose. Thus, the statements as to a diagnosis and etiology of sleep apnea, made by the lay statements, are afforded no probative value. Reviewing the evidence, the Board finds that the most probative evidence is against the claim of entitlement to service connection for sleep apnea. Here, the November 2019 VA medical opinion is the most probative evidence of record as to a nexus. Additionally, the Veteran's treatment records were contemporaneous to his diagnosis, and the 2019 VA medical opinion was based on a thorough review of the record; examination of the Veteran; consideration of his lay statements, buddy statements, and service treatment records; and contains a thorough rationale to support its conclusions. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.