Citation Nr: 22014381 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-13 951 DATE: March 12, 2022 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT Sleep apnea was not manifest in service and is not attributable to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded this issue in May 2021 to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for sleep apnea The Veteran asserts that he is entitled to service connection for obstructive sleep apnea (OSA). STRs are associated with the claims file and there is no indication that the Veteran received any treatment for or had any reports of OSA, sleep difficulties or daytime somnolence. On a September 1988 self-completed private medical history form, the Veteran did not check the box for extreme, lasting fatigue. An October 1990 private treatment record reflects that "there was at one time a question of sleep apnea, although that was never documented." The Veteran underwent a VA home sleep study clinic in November 2004. He was diagnosed with mild sleep apnea in January 2005. The corresponding medical note states that the Veteran had a mild study without much snoring or significant desaturation and was not a candidate for a CPAP. In March 2015 correspondence, the Veteran reported that he was diagnosed with chronic obstructive pulmonary disease (COPD) in September 2005. He stated that his OSA symptoms first appeared at the same time as his COPD, "and continue to worsen, secondarily to and at a pace similar to that of my COPD." In August 2015, the Veteran submitted an article regarding the relationship between OSA and COPD. In a corresponding email, he stated that he developed sleep apnea from his COPD and asthma. The authors of the article report on a study of 54 men with COPD and find comorbidity and symptom overlap with OSA. However, there were no clear findings of causation or aggravation. Rather, the authors noted that little was known about the pathophysiological and clinical consequences of concomitant OSA and COPD. The Veteran submitted a privately completed disability benefits questionnaire from a consultant in October 2015. The private consultant stated that the Veteran was diagnosed with OSA in January 2005. In a corresponding letter, the Veteran stated that he had breathing issues in service and began snoring at night. He stated that he married his first wife in 1990 and she regularly complained of his loud snoring during their marriage, so much so that he sought medical attention in 1994 and underwent a uvulopalatoplasty. In October 2015 correspondence, the Veteran's son reported hearing the Veteran snore through his childhood. In November 2015 correspondence, the Veteran's spouse reported observing snoring exhibited by the Veteran as early as 2009. In an April 2016 new patient evaluation, a private doctor stated that the Veteran reported exercise-induced asthma with difficulty wheezing and breathing during heavy exercise on active duty, but his symptoms improved significantly when he was discharged. The private doctor stated that following the Veteran's discharge his snoring worsened and he underwent the uvulopalatoplasty in 1994 to treat the snoring. He saw improvement and did not need additional treatment until 2005 when he was treated with oxygen at night. She noted that the Veteran gained significant weight in the last 20 years, from 145 pounds to 220 pounds. In May 2016 correspondence, the Veteran stated that he sought medical attention for his snoring in 1991 and had his uvula removed. He also submitted several articles regarding the relationship between asthma and OSA. These articles report studies on the coincidence of OSA and asthma and that asthma is among multiple risk factors for OSA but do not discuss causation and one study indicated that there were plausible but not confirmed mechanisms for aggravation in both directions which required further study. A VA opinion was obtained in December 2020. The examiner determined that it was less likely than not that the Veteran's sleep apnea was related to service. He stated that the January 2005 sleep study revealed little snoring or significant desaturation and the Veteran wasn't an ideal candidate for a CPAP. The examiner found the mild results of the study 12 years post-discharge to be influential. He determined that the Veteran's age and weight were more likely the cause of OSA, and not the in-service reports of snoring. Another VA opinion was obtained in August 2021. The examiner reviewed the claims file and concluded that it was less likely than not that the Veteran's sleep apnea was related to service. The examiner explained that the Veteran did not have any symptoms or manifestations of sleep apnea while in service. He noted the October 1990 private treatment record regarding potential sleep apnea and the 1994 uvulopalatoplasty but explained that even taking the Veteran's lay statements and treatment into account, there was no indication that sleep apnea symptoms began in service. In February 2022, the Veterans submitted an October 2021 statement from a fellow Marine who was stationed with the Veteran and shared a barracks room. This Marine reported observing the Veteran's loud snoring and that the Veteran would fall asleep during group conversations in the barracks. The Veteran has not been awarded service connection for asthma or COPD. The Board is not persuaded that the evidence supports the Veteran's claim, and entitlement to service connection for sleep apnea is not warranted. In reaching this conclusion, the Board finds the aggregate of the December 2020 and August 2021 VA examinations to be highly probative. The examinations addressed the Veteran's contentions that his symptoms and manifestations of sleep apnea began prior to his 2004 sleep apnea diagnosis. The examiners explained that even taking the Veteran's statements into account, there was nothing probative to indicate that sleep apnea began in service. In a March 2022 brief, the Veteran challenged the most recent medical opinion on the basis that the examiner did not understand the legal standard of an equal balance of evidence in favor of the Veteran. This contention is misplaced. Medical examiners are not charged with or expected to apply any legal standards; this is the responsibility of adjudicators who evaluate the medical evidence on the basis of competency, credibility and probative weight. The Board has considered the Veteran's lay statements and the statements provided by his spouse and son regarding the Veteran's snoring. However, the etiology of sleep apnea is a complex medical matter beyond the expertise of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). Snoring alone does not indicate that an individual has sleep apnea. The evidence falls short of suggesting sleep apnea is related to service. Furthermore, the Board finds the September 1988 self-completed private medical history form in which the Veteran denied long-lasting fatigue to be highly probative. The fellow Marine's and son's statements were considered but are inconsistent with the Veteran's own statements in September 1988 and March 2015 statement that the symptoms onset at the same time as his COPD. The Board finds these documents to be more probative than the more recent reports the Veteran and other lay statements made in support of his claim. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Lastly, the Veteran's main contention has been that his sleep apnea is related to or caused by his breathing conditions, and he is not currently service-connected for any breathing disabilities. In summary, the evidence is persuasively against the Veteran's claim that sleep apnea had its onset in service or is otherwise related to service. In light of the evidence, the Board concludes that entitlement to service connection for a sleep apnea disability is not warranted. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.