Citation Nr: 22018307 Decision Date: 03/29/22 Archive Date: 03/28/22 DOCKET NO. 15-00 740 DATE: March 29, 2022 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran's current sleep apnea disability was not manifest in service, is unrelated to service, and is not caused or aggravated by his service connected lumbar spine degenerative joint disease with disc herniation. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1994 to July 1997. He appeals for service connection for sleep apnea denied from a December 2012 agency of original jurisdiction (AOJ) rating decision based on a claim filed in August 2011. The appeal was remanded by the Board of Veterans' Appeals (Board) in June 2018, November 2019, November 2020, and June 2021. The Veteran cancelled a Board hearing in April 2021. The appeal is now ready for final Board review. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Board notes that the Veteran's service treatment records (STRs) are incomplete, with no service discharge examination report of record. The United States Court of Appeals for Veterans Claims ("the Court") has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. Based on the evidence of record, the Board concludes that service connection is not warranted for the Veteran's current obstructive sleep apnea disability. The persuasive evidence indicates that it was not manifest in service, is unrelated to service, and is not caused or aggravated by his service connected lumbar spine degenerative joint disease with disc herniation. STRs do not report sleep apnea or indicate that the Veteran was having sleep problems at the time. The first report of sleep trouble in the record was during post-service VA treatment in September 2010, when it was reported that the Veteran did not sleep well, that his wife told him he snores, and that he wakes up on occasion with the need to catch his breath. A sleep study was ordered to rule out sleep apnea, but it showed obstructive sleep apnea instead. A March 2021 VA medical opinion indicates that it is less likely than not that the Veteran's sleep apnea began in service or is otherwise causally or etiologically related to service. The examiner considered all available records including October 2011 and January 2013 statements from the Veteran, post-dating September 2010, and post-claim, wherein he reported that he had symptoms in service including waking up and gasping for air. The examiner indicated that it would be mere speculation as to their significance regarding sleep apnea or its development. The examiner noted that sleep apnea is caused by muscles that support the soft tissues in the throat, such as the tongue and soft palate, which temporarily relax. When they relax, the airway is narrowed or closed, and breathing is momentarily cut off. The examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Additionally, while the Veteran reported in August/October 2011 and January 2013 that he had sleep problems in service, but did not report them because he was intimidated and did not want to be considered to be a weak soldier, and that sleep apnea began in service, this does not explain his delay until 13 years post service to seek treatment for them, and this is not the same narrative he reported in September 2010. He reported at that time that his wife told him he snored, and mentioned nothing about sleep problems in service. Thus, he was inconsistent which diminishes the credibility of his statements. The persuasive evidence also indicates that the Veteran's current sleep apnea is not caused or aggravated by his service connected low back disability, including through obesity supposedly caused or aggravated by his service connected low back disability. The March 2021 VA medical opinion indicates that it is less likely than not that the Veteran's service connected back disability caused him to become obese or aggravated his obesity, whether by interfering with his inability to exercise or otherwise. The VA medical opinion also indicates that it is less likely than not that the Veteran's sleep apnea would not have occurred, but for the Veteran's obesity or been aggravated by the Veteran's obesity. The VA examiner evaluated all available records and noted that back pain does not cause sleep apnea or weight gain. Instead, weight gain (obesity) is caused by consumption of too many food calories. The Veteran had reported that he was able to walk for up to 20 minutes at work, and the examiner indicated that this would allow for the expenditure of some food calories. The examiner indicated that it would be mere speculation as to the balance of intake verses expenditure of calories. As noted, the Board has afforded significant probative value to this opinion as it was rendered by a medical professional, is afforded significant probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.) The Board has considered the Veteran's own opinion that his obstructive sleep apnea is related to service or his back disability. However, as a lay person in the field of medicine, the Veteran does not have the training or expertise in medical matters and this issue involves a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the Veteran's opinion is outweighed by the VA medical findings to the contrary since those findings were provided by a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The most competent and credible of record showing that the Veteran's sleep apnea was not manifest in service, is not related to service, and is not caused or aggravated by his service connected low back disability. While the Veteran may feel that his sleep apnea had its onset in service or is caused or aggravated by his service connected low back disability, his opinions as to these medical matters are less competent and credible than the medical professional's opinion. The most persuasive evidence is against the claim and there is no reasonable doubt to be resolved in the Veteran's favor concerning it. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.