Citation Nr: 23063243 Decision Date: 11/30/23 Archive Date: 11/30/23 DOCKET NO. 20-18 394 DATE: November 30, 2023 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The evidence weighs against a finding that OSA began during active service or for many years thereafter, and OSA is not otherwise shown to be related to service. CONCLUSION OF LAW The criteria for service connection for OSA have not been met.? 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to February 1980.? Unfortunately, the Veteran died in December 2021 while his appeal was pending before the Board.? Upon the Veteran's death, his surviving spouse requested to be substituted as the Appellant for purposes of processing the pending appeals to completion.? See 38?U.S.C. §?5121A; 38C.F.R. §3.1010.? She has been properly substituted as the Appellant in this case.? The Appellant cancelled a videoconference hearing that was scheduled for December 2022. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.??38?U.S.C. §§?1110;?38?C.F.R. §?3.303.? Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.??38?C.F.R. §?3.303(a). 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).??? To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service.? Horn v.? Shinseki, 25?Vet. App.?231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004);?Gutierrez v.?Principi, 19?Vet. App.?1, 5 (2004) (citing Hickson v.?West, 12?Vet. App.?247, 253 (1999)).? In many cases, medical evidence is required to meet the requirement that the evidence be "competent."? However, when a disability may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.? Barr v. Nicholson, 21?Vet. App.?303, 309 (2007).??? Service connection for certain chronic diseases?may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38?U.S.C. §§?1101, 1112;?38?C.F.R. §§?3.307(a)(3), 3.309(a).? Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.??38?C.F.R. §§?3.307(a).??? When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.??38?C.F.R. §?3.303 (b).? To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question.??Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013);?see also 38?C.F.R. §?3.303(b).? There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.? Walker, 708 F.3d at 1336.??? Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.? VA shall consider all information and medical and lay evidence of record.? Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.? 38?U.S.C. §?5107; 38?C.F.R. §?3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).? Entitlement to service connection for OSA The Appellant asserts that the Veteran developed chronic sleep problems in service more than 40 years ago. The Appellant claims that the Veteran inhaled toxic pain chips while painting ships as a boatswain's mate during service which caused his OSA. In support of his claim, in January 2019, the Veteran submitted a statement from N.P., who reported having served with the Veteran aboard the USS Parson, and recalled that the Veteran snored loudly and shipmates reportedly witnessed episodes of apnea during sleep. ? The Veteran's service treatment records were silent for complaints, diagnosis, or treatment for sleep apnea or sleep problems generally. On separation from service, in a February 1980 report of medical history, the Veteran denied a history of frequent trouble sleeping, shortness of breath or chronic cough. Additionally, there is no evidence contemporaneous with service showing complaints or findings consistent with impaired sleep or a diagnosis of OSA. After service, on annual examination in March 1981, the Veteran denied a history of frequent trouble sleeping, shortness of breath or chronic cough. At this point, it is the Veteran himself who provides evidence against his claim. VA treatment records since 2013, noted OSA. Subsequent treatment records show that the Veteran was diagnosed with OSA and fitted with a continuous airway pressure (CPAP) machine. The Board notes that the first documented evidence of OSA is more than three decades after the Veteran's discharge from active duty service. Based on the above, the Board must conclude that OSA did not have its onset during service and has not been continuous since that time. Owens v. Brown, 7?Vet. App.?429, 433 (1995). In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran asserted continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records and post-service treatment records, which fail to document any related complaints until more than 30 years after discharge from service. See Owens, supra. On the question of a nexus between the Veteran's OSA, initially noted many years after service, the evidence weighs against the claim. On VA examination in June 2019, the Veteran reported that had always had a problem poor sleep and loud snoring. He reported that he felt he developed OSA due to the performance of his duties as a boatswain's mate that exposed him to breathing paint chips while painting ships. Reportedly, OSA was considered a possible assessment since 2006, however, OSA was not diagnosed until a March 2014 sleep study was performed. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner considered the Veteran's contentions and explained that there was absolutely no connection between OSA and breathing contaminates or paint fumes. While contaminants or paint fumes could cause lung tissue problems, theoretically, OSA was a problem of the upper airway system, not of the lungs. Moreover, the service treatment records failed to document any complaints or treatment for poor sleep, snoring, or even a respiratory problem, other than acute unrelated illness. The only evidence the Veteran had a possible sleep issue during service were the assertions of N.P. and the Veteran who described snoring issues while in service. The fact remained that there was three decades gap between service and the diagnosis of OSA. Therefore, the examiner concluded that it was less likely than not that the Veteran's current OSA was related to service. The?Board finds?the?opinion of?the?VA examiner in June 2019 to be highly persuasive and?probative in finding that?the?evidence does not support a conclusion that?the?Veteran incurred?OSA in service.? The?examiner's findings were based on a review of?the?evidence, including?the?service and post-service treatment records, which did not substantiate a finding that?the?Veteran's OSA initially manifested in service. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that the Veteran's OSA, which was not shown in service, and was initially noted in 2014, was not related to service. The examiner cited to the medical literature and specifically addressed lay statements submitted in support of the claim. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record. The Board finds this opinion highly probative. See Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the Veteran's OSA to service. (Continued on the next page) ? The Board has considered the statements from the Veteran and the Appellant asserting that OSA had onset during active duty service, as well as the statement from N.P. who recalled that the Veteran snored loudly when they served together almost 40 years earlier. The Veteran, N.P. and Appellant are certainly competent to report as to the observable symptoms, experiences and their history, but the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Therefore, while the Veteran may have had sleep and snoring problems during active duty service, neither the Veteran nor N.P. nor the Appellant have been shown to be competent to state that these were symptoms of OSA. The Board finds that the specific, reasoned opinion of the VA examiner in June 2019 is of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which she relied to form the opinion, and the examiner provided a rationale for the conclusion reached. For the reasons set forth above, the Board finds that the most probative evidence weighs against a finding that the Veteran's OSA is related to service. Thus, service connection for OSA is denied. As such, the benefit of the doubt rule does not apply. See 38?U.S.C. §?5107; 38?C.F.R. §?3.102; Lynch, 1?Vet. App.?at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.