Citation Nr: 22016269 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-60 144 DATE: March 21, 2022 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran's current sleep apnea is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from June 1970 to December 1971. The Veteran and his spouse appeared at a virtual hearing before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing is of record. In August 2021, the Board remanded this issue for further development. The requested development has been completed and the matter is ready for appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Chronic obstructive sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran maintains that he currently has sleep apnea which had its onset in service or in the alternative is related to a service-connected disability. A review of the Veteran's service treatment records reveals that there were no findings or diagnoses of sleep apnea in service. The Board observes that the Veteran was diagnosed with sleep apnea in 2014. At the time of his June 2021 hearing before the undersigned Veterans Law Judge, the Veteran testified that he had had difficulties with sleeping in service and since that time. His spouse testified that she had been married to the Veteran for 45 years and that he had difficulties with sleeping the entire time she had known him. She noted that the snoring was very loud and that he would stop breathing. She stated that it had gotten progressively worse. The Veteran indicated that he had suffered through it for many years. Following the Veteran's testimony, the Board remanded the matter for further development in August 2021, to include obtaining a VA examination with an accompanying opinion as to the etiology of the Veteran's sleep apnea. The Veteran was afforded the requested VA examination in December 2021. At that time, a diagnosis of sleep apnea was rendered. Following examination, the examiner rendered several opinions with regard to the etiology of the Veteran's sleep apnea. She stated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She observed that the August 2021 remand noted evidence received revealed the Veteran continued to be diagnosed with OSA. She also observed that at the time of the Veteran's June 2021 virtual hearing, both the Veteran and his spouse, who had been married to the Veteran for over 45 years, noted that the Veteran had had snoring problems for many years, including stopped breathing. She noted that a review of the service treatment records (STRs) showed no evidence of the diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty. She indicated that observed snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing, and insomnia were not pathogonomic for sleep apnea. She stated that sleep apnea was diagnosed by polysomnography, apnea/hypoxia index (AHI or PRDI), which was the diagnostic standard for OSA. A nexus had not been established. The examiner further opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition. She indicated that the OSA was less likely than not, 50 percent or less probability, caused by any service-connected disorder, to include major depressive disorder; lumbar degenerative disc disease; right and left lower extremity neuropathy; and tinnitus. She noted that the condition of OSA and major depressive disorder; lumbar degenerative disc disease; right and left lower extremity neuropathy; and tinnitus were not medically related. The OSA was a separate entity entirely from the major depressive disorder; lumbar degenerative disc disease; right and left lower extremity neuropathy; and tinnitus and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. Definite risk factors for OSA included obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Obesity was the best documented risk factor for OSA. The prevalence of OSA progressively increased as the body mass index and associated markers (e.g., neck circumference, waist-to-hip ratio) increased. Craniofacial and upper airway soft tissue abnormalities each increased the likelihood of having or developing OSA. Examples of such abnormalities included an abnormal maxillary or short mandibular size, a wide craniofacial base, tonsillar hypertrophy, and adenoid hypertrophy. (UpToDate 2015). A nexus had not been established. The examiner further opined that Veteran's OSA was less likely than not, 50 percent or less probability, aggravated beyond its natural progression by the service-connected condition, to include major depressive disorder; lumbar degenerative disc disease; right and left lower extremity neuropathy; and tinnitus. She indicated that observed snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing, and insomnia were not pathogonomic for sleep apnea. Sleep apnea was diagnosed by polysomnography, apnea/hypoxia index (AHI or PRDI), which was the diagnostic standard for OSA. A thorough review of medical literature failed to demonstrate a causal relationship between OSA and major depressive disorder; lumbar degenerative disc disease; right and left lower extremity neuropathy; nor tinnitus. A nexus had not been established. The Board notes that while the Veteran did not report having sleep apnea type symptoms in service, his spouse indicated that the Veteran had snoring/sleep problems throughout their 45 years of marriage. The Veteran has also reported having problems with snoring during this time frame as well as during service. While the Veteran and his wife believe the Veteran has sleep apnea, they are not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, including the December 2021 VA examination report. In sum, the Board finds that the evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, --- F.4th ----, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). The claim of entitlement to service connection for sleep apnea is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.