Citation Nr: 22015341 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-61 979 DATE: March 17, 2022 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The evidence persuasively weighs against a finding that the Veteran's 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 sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to August 1981. He also served in the Air Force reserves from August 1981 to April 1985 and in the Air Force National Guard from April 1985 to June 2007, with various periods of ACDUTRA and INACDUTRA. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2020, and a transcript of that hearing is of record. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Board finds there has been substantial compliance with the most recent Board remand, as an adequate medical addendum opinion was obtained in December 2021 in accordance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). The elements of service connection are: "(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," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the Veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154; 38 C.F.R. § 3.303; See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As a threshold matter, only "veterans" are entitled to VA compensation. 38 U.S.C. § 1131. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101; 38 C.F.R. § 3.1. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty; or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101, 106; 38 C.F.R. § 3.6. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss and tinnitus, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. See also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 1. Entitlement to service connection for sleep apnea is denied. During the Board hearing, the Veteran testified that his snoring began during an ACDUTRA period. While he indicated formally having been diagnosed with OSA in September 2011, he pointed to various evidence of record that is suggestive of his OSA, even prior to September 2011. His spouse also testified her having noticed the onset of the Veteran's "bad snoring" and difficulty breathing from around the 1990s. At the outset, it is not in dispute that the Veteran has a current disability, as he has been diagnosed with obstructive sleep apnea (OSA) during the appeal period. His service treatment records also include several reports of complaints and treatment for snoring or breathing problems, beginning in the 1990s (i.e., April 1990 and September 1990 service treatment records noting problems with snoring). The December 1992 service treatment records also contain a handwritten note documenting snoring/sleep apnea resolved. His periodic examinations conducted throughout the military service show normal ENT/lungs/chest/vascular systems. See i.e., November 1978 physical examination, September 2002 periodic examination. His September 2002 report of medical history for periodic physical examination includes the Veteran's report of recent weight gain/loss of weight. The Board notes that the Veteran's service includes various periods of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), of which his Air Force Reserves and National Guard records do not document his service in a day-month-year format. As extensively discussed in the prior Board remand, the Veteran testified that he recalled being on ACDUTRA from September 4, 1990, to December 16, 1990, even though his personnel records do not confirm this and repeated efforts by the RO to gather detailed information concerning these periods of service have been futile. Nonetheless, the Board previously found the Veteran's and his spouses' testimony credible to indicate that some of his reservist duty in the 1990s was during a period of ACDUTRA when his symptomatology began. While the Veteran first underwent a VA examination for OSA in July 2021, its negative medical nexus opinion was found inadequate, as extensively discussed in the November 2021 Board remand. The Board reasoned that the July 2021 VA examination's rationale failed to specifically address and consider the Board hearing testimony, but instead, focused on the progressive weight and obesity, in furnishing the negative nexus opinion; and that the examiner noted only the December 1992 service treatment records and disregarded it on the basis that this note was made 10 years after the Veteran's separation from the active dutyeven though the Veteran had subsequent service period inclusive of active duty, ACDUTRA, and INACDUTRA, and while the Board had found the Veteran and his spouse's testimony to be credible to indicate that some of his reservist duty in the 1990s was during an ACDUTRA period. As such, the Board remanded for a new medical addendum opinion in November 2021. Post-November 2021 Board remand, a new medical addendum opinion was obtained in December 2021. The examiner opined that while it is not possible to pinpoint the exact date of the incurrence, it was less likely than not that the Veteran had the onset of OSA during the period of ACDUTRA. Despite acknowledging the Board hearing testimony/service treatment records (regarding the onset of his symptoms, to include snoring), the examiner explained that his OSA was due to the gradual weight gain that incurred over the many years of post-active duty period and highlighted that weight gain is the number one risk factor for developing OSA. The Veteran was not diagnosed with OSA until 1992 and while it is possible he had OSA prior to that date, the examiner underlined that the gradual weight gain did not incur during active duty, nor was it due to any specific injury or disease incurred during a period of ACDUTRA. In doing so, the examiner pointed to his normal weight/BMI of 24.1 on separation from active duty. In light of these findings, the examiner concluded that the Veteran's OSA was less likely than not associated with either his active duty or ACDUTRA period. The Board points out that the evidence of record does not support that the Veteran was on active duty, ACDUTRA, or INACDUTRA in 1992 at the time he was diagnosed with OSA nor does he contend otherwise. Consistent with the Veteran's Board hearing testimony, his VA treatment records include a referral to ENT for excessive snoring and sinus operation conducted in 1995, UPPP/UVULA surgeries, as well as a diagnosis of OSA found during September 2011. The Veteran's private treatment records also include a diagnosis of OSA and medical article (ie. pathophysiology of OSA being webbing of the soft palate and snoring being part of the sleep disordered breathing spectrum). His SSA disability records including an ENT treatment beginning in 1996 for ENT/sinuses and a sleep disorder. However, his treatment records do not otherwise include any information pertinent to a medical nexus opinion. The Board assigns a high probative value to the December 2021 VA medical addendum opinion, as this was furnished after extensive review of all pertinent findings, to include his treatment records and medical articles contained therein, substantiated by concrete factual findings. Based on the evidence of record, the Board finds that the Veteran's OSA did not have an onset during active service, and that there is negative line of duty determination. The Board acknowledges the Veteran's belief that his OSA resulted from his military service. While he is competent to describe his experience/symptoms, he is not competent to furnish a medical nexus opinion, as such requires complex medical knowledge and training. Thus, the Board does not assign any probative value to his statements at least relating to the nexus component. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for OSA is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.