Citation Nr: 21042516 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-59 437 DATE: July 13, 2021 ORDER Entitlement to service connection for sleep apnea, claimed as secondary to service-connected headaches, is denied. FINDING OF FACT The preponderance of the evidence shows that sleep apnea was not present in service or until many years thereafter, it is not related to service or to an incident of service origin, and it is not caused by or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for the establishment of service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on served on active duty from June 1970 to June 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating from the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 and March 2020, the Board remanded the Veteran's claim for further development. The required development has been completed and the matter is properly before the Board at this time. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection The Veteran maintains he suffers from a sleep condition that is etiologically related to service, or alternatively, that the condition is secondary to his service-connected headache disability. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, service connection may be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a specific compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Importantly, the Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection for Sleep Apnea It is not in dispute that the Veteran has a current diagnosis of sleep apnea. See Mayo Clinic Sleep Study Final Report, December 2007; see also VA Sleep Apnea Disability Benefits Questionnaire (DBQ), March 2017. Thus, the first element of a claim for service-connection, a current disability, has been met. The Veteran's service treatment records (STRs), however, do not contain complaints, treatment, or diagnosis for sleep disorder. The Veteran's entrance, in-service, and separation medical examinations do not contain complaints, treatment, or diagnosis of a sleep disorder. See e.g., Enlistment Report of Medical History, June 1970 and August 1970; Separation Report of Medical Examination, May 1974. The Veteran's post-service medical records do not reveal a diagnosis of a sleep disorder within applicable time limits for a presumption and they do not show continuous ongoing medical treatment for a sleep disorder since service. In this case, there is no evidence of presumptive service connection for a chronic disease, nor is there evidence demonstrating continuity of symptomatology after service, where the first medical evidence of a sleep disorder began in 2007, over 30 years after service. The Board acknowledges the Veteran's ex-spouse's lay statements that she observed the Veteran stopped breathing in his sleep in 1973. See Former Spouse Statement, December 2016. The Board also notes the Veteran reported he told a Navy doctor while in service that he felt his breathing problems (when he stopped breathing while sleeping) were related to his headaches. See Veteran's Correspondence, dated January 2020. However, while competent and credible, these statements do not provide a basis for which the Board can find that the Veteran had a sleeping disorder in service, let alone a sleeping disorder that is etiologically related to his current sleep apnea condition, diagnosed in 2007, and his service, discharged in 1974. The Veteran did not endorse "frequent trouble sleeping" in his June 1970 and August 1970 Report of Medical History while in service. The examiner made no mention of a sleeping disorder on his May 1974 separation physical examination. Moreover, there are no records showing the Veteran had any problem with a sleeping disorder during his time in service. The Veteran did report many instances of a chronic and persistent headache throughout his service. See Service Treatment Records, 1972 1974. However, the Board finds there is no evidence of record where the Veteran or an examining physician (or nurse, etc.) noted that he reported trouble with sleeping in service. Id. As such, it does not seem reasonable the Veteran would report some continuing problems (headaches) and not others (sleep problems). Additionally, the United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Accordingly, providing competent evidence linking his current sleep condition to service is needed to substantiate the claim. In this regard, the Board finds that the Veteran and his ex-spouse are both competent and credible to report on the events he experienced in-service as well as the observable manifestations of his disability, to include the claim that he had difficulty sleeping while in service. See Davidson, supra. However, while the Veteran is competent and credible to report on symptoms of his disorder, he is not competent, for evidence purposes, to opine on matters requiring medical knowledge such as determining the nature, diagnosis, etiology, and severity of a medical condition as complex as obstructive sleep apnea. See i.e., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). March 2017 and December 2019 VA examiners both opined the Veteran's sleep condition was less likely than not (less than 50 percent probability) incurred in or caused by service. The March 2017 VA examiner specifically addressed the Veteran and ex-spouse's statements concerning the stoppage of breath during sleep and opined that it is not possible to use this as diagnostic for sleep apnea over 30 years later because further diagnostic evaluation would have been necessary for a medical diagnosis. Furthermore, the examiner pointed to the Veteran's other risk factors (i.e., age, obesity) developing around the same time as his diagnosis in 2007 as a plausible explanation for the post-service diagnosis. The Veteran also submitted a medical nexus opinion letter from Dr. L.S. who stated, "it is my opinion that [the Veteran] has had headaches, sinus disease and sleep apnea since he was in the Navy and that they have all persisted until the present." See Private Medical Opinion of Dr. L.S., November 2016. In support, the examiner stated the Veteran told him about his problems with sleeping (around 2006) in the course of treatment for his headaches and since there was no history of sleep apnea prior to the military to suggest it was present before his service, the Veteran's current sleep apnea must have had onset in service. The Board finds that the November 2016 private opinion provides little probative value in determining the nature and etiology of the Veteran's current sleep apnea condition as it relates to service. Specifically, the Board finds the private opinion is not supported by any clinical data. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). Moreover, the private opinion fails to sufficiently inform the Board of the essential rationale for the opinion without any evidence. See Nieves-Rodriguez, 22 Vet. App. at 301 ("[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)). Here, the private opinion fails to account for the 30-year span between service (1974) and diagnosis (2007). At this point, suggesting the Veteran had sleep apnea in the early-1970's, without any evidence, based on this record in particular, Dr. L.S.'s opinion is progressing from an effort to provide objective medical opinion evidence to advocacy. Given the above, the Board finds that the March 2017 and December 2019 VA opinions provide highly probative evidence against the claim. The opinions were based on a thorough review of the claims file, including the service treatment records, and examination of the Veteran (see March 2017 VA Sleep Apnea DBQ), and they are consistent with the other evidence of record. Moreover, the examiners both provided an adequate rationale for their respective opinions and considered the lay statements of the Veteran and witnesses. At minimum, the opinion from Dr. L.S. is outweighed by the two adequate VA opinions, as the VA examiners provided a more detailed rationale for the conclusions reached. Accordingly, VA examiners' opinions are entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In this case, the Board finds that the March 2017 and December 2019 VA examinations are the most probative evidence of record on the issue of direct service connection. The Board also acknowledges the Veteran's lay statements and medical treatise evidence describing a general lack of medical awareness surrounding sleep apnea in the late 1970's as the reason the examiner did not diagnose him in service. See Veteran's Correspondence, dated January 2020. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). However, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." See Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive). In this case, the medical treatise evidence submitted by the Veteran provides the Board with only generic statistical information regarding rates of study for sleep disorders within U.S. medical education in 1978 (after the Veteran left service). Additionally, the treatise evidence is not accompanied by any corresponding clinical evidence specific to the Veteran, and it does not suggest a relationship between the Veteran's sleep apnea (diagnosed in 2007) and his time in service (in the early 1970's), with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts of the claim. As such, the Board places little probative weight on this evidence. In this case, the record provides highly probative evidence against the claim that the Veteran's current sleep disorder manifested itself while in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for sleep apnea. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Lastly, the Board also finds that the preponderance of the evidence shows that the Veteran's current sleep apnea is not caused by or aggravated by his service-connected headaches. See 38 U.S.C. § 1131; 38 C.F.R. § 3.310. In this regard, the March 2017 and December 2019 VA examiner's opined, in substance, that the Veteran's sleep apnea is not caused or aggravated by his service-connected headaches. In support, both VA examiners analyzed the medical evidence from the record, including the Veteran's lay statements and medical literature regarding the type of headaches the Veteran reported, and opined the Veteran did not exhibit headaches of the same character and type typically reported by sleep apnea headache patients. Moreover, the examiners pointed out that the literature suggested that sleep apnea can cause tension-type headaches, but that the reverse is not true. Thus, the best medical evidence of record shows there is no etiological relationship where headaches can cause sleep apnea. Prior to Ward v. Wilkie, 31 Vet. App. 233 (2019), the appropriate language to use in order to determine whether there was aggravation by a service-connected disability of a non-service-connected disability meant that the non-service-disability had to be aggravated beyond its natural progression. However, the court in Ward held that providing compensation for only the incremental disability attributed to the service-connected condition does not require that the increase in disability must be permanent. The Board notes the December 2019 examination used the pre-Ward language, saying the Veteran's sleep apnea was not "aggravated beyond its natural progression" by the Veteran's service-connected headaches. However, the Board does not find that this renders the examination inadequate. If the Board assumes that the examiner meant that the Veteran's sleep apnea had not been aggravated, even not permanently, by his service-connected headaches (post-Ward standard), the examiner's rationale for the opinion still applies: that the evidence does not show the Veteran's sleep apnea existed prior to his headaches and that "sleep apnea causes headaches and that they [headaches] are not a known cause of or influence of sleep apnea." Therefore, the Board does not find a remand for another examination is warranted. The Board finds the March 2017 and December 2019 VA opinions are the most probative evidence of record because they were provided after a review of the record on appeal, with opinions supported by explanations based on medical literature. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that the VA opinions are competent, credible and the most probative evidence of record. The Board also acknowledges the Veteran's opinion that his service-connected headaches are related to his sleep apnea. See Veteran Correspondence, January 2020. However, again, the Board finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what relationship, if any, his headaches have with his current sleep apnea). See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of secondary service connection for sleep apnea. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.310. Therefore, the Board finds that the claim of service connection for sleep apnea is denied. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. April Snoparsky Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.