Citation Nr: 22016261 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-21 576 DATE: March 21, 2022 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea did not manifest in service and is not shown to be etiologically related to his service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. § 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. Navy from May 1981 to October 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision. A June 2019 Board decision denied service connection for sleep apnea. A March 2021 U.S. Court of Appeals for Veterans Claims (Court) Memorandum Decision vacated the June 2019 Board decision and remanded the matter of service connection for sleep apnea. In October 2021 the Board remanded the matter for additional development. Entitlement to service connection for obstructive sleep apnea. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's service treatment records (STRs) are silent regarding any complaints, diagnosis, or treatment for sleep apnea, interrupted nighttime breathing or daytime somnolence. A November 1982 STR notes the Veteran was seen for oral lesions which were preceded by several days of general fatigue and headache. The diagnosis was erythema multiforme. A January 1983 treatment record notes the Veteran was prescribed Benadryl for treatment of erythema multiforme. The Veteran underwent a medical board and was discharged because of this now service-connected disability. In September 2015 correspondence (NOD), the Veteran stated that he has been told by his shipmates that he snored heavily and sometimes stopped breathing while sleeping. A March 2017 sleep consultation notes the Veteran was seen for evaluation and treatment of possible sleep disorders. An April 2017 unattended portable sleep study showed obstructive sleep apnea and suspected sleep related hypoxia. A May 2017 polysomnography report showed obstructive sleep apnea. In April 2018 correspondence (Form 9), the Veteran stated that his fellow service members would complain of his sleeping while in service. On December 2019 skin diseases examination, the diagnosis was recurrent erythema multiforme with recurrent skin lesions, oral lesions, and generalized fatigue. The Veteran reported experiencing extreme fatigue during flare-ups. On December 2021 sleep apnea examination, the diagnosis was obstructive sleep apnea (2017). In a December 2021 medical opinion, the clinician opined that it was less likely than not that the Veteran's obstructive sleep apnea was related to service. The clinician noted the Veteran had no history of a sleep related condition in service. The clinician noted the Veteran's lay reports of fatigue/drowsiness in service. The clinician noted that the Veteran is service connected for erythema multiforme and noted that one of the symptoms of such condition is fatigue. The clinician noted common risk factors for sleep apnea as age, gender, obesity, and craniofacial and upper airway soft tissue abnormalities. The examiner addressed the reports of snoring and discussed why that symptom is not necessarily indicative of sleep apnea. The examiner listed a number of other concurrent symptoms other than fatigue that were not noted in service. The Board acknowledges the Veteran's report that his shipmates told him that he snored and that he stopped breathing but there is no evidence to support these episodes. The Veteran was evaluated for fatigue in service, attributed to medications for erythema multiforme, and had interrupted breathing been concurrent, it would have been reported and noted by clinicians during hospitalization followed by the medical board evaluation. Therefore, the Board must place low weight on the secondhand report of apnea in service. It is not in dispute that the Veteran has obstructive sleep apnea (it has been confirmed by a sleep study, and the Veteran was first diagnosed in 2017). Whether his sleep apnea may be onset or caused by service is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any medical opinion or treatise evidence that shows, or suggests, that his sleep apnea was incurred in service. Specifically, regarding the theory of entitlement raised by the Veteran (that he experienced fatigue in service and fatigue was a manifestation of sleep apnea), the Veteran has not submitted any medical opinion (or treatise) evidence indicating that his fatigue in service was evidence of an underlying sleep apnea. Notably, the Veteran's STRs indicate the presence of fatigue was related to his service-connected erythema multiforme. See November 1982 STR. As noted above, a medical opinion was provided in December 2021. The clinician opined that it was less likely than not that the Veteran's obstructive sleep apnea was related to service. The clinician expressed familiarity with the record and noted the Veteran's reports of fatigue in service were related to his service-connected erythema multiforme. The clinician noted there was no evidence of a sleep related condition in service and noted more likely risk factors for sleep apnea. The Board finds the opinion offered to be probative and of greater weight than the lay evidence in this matter, and while there is not equally or more probative medical evidence to the contrary, the Board finds it persuasive. Considering the foregoing, the Board finds that the weight of competent and credible evidence is against this claim, and the appeal must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.