Citation Nr: 1736693	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-29 277	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


Entitlement to service connection for obstructive sleep apnea.


M. Prem, Counsel


The Veteran served on active duty from July 1972 to September 1980, November 2001 to April 2002, and September 2002 to August 2004.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  This matter was remanded in March 2016 and September 2016 for further development.  


Obstructive sleep apnea was not manifested during the Veteran's active duty service or within one year of discharge, nor is it otherwise related to service.  


The criteria for an award of service connection for obstructive sleep apnea have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.102, 3.303 (2016).


Duty to Notify and Assist

In an October 2009 letter, the RO provided the Veteran with notice regarding the above service connection issue. 

The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that 
VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2016).  VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2016).  Relevant service treatment and other medical records have been associated with the claims file.  The Veteran was given a VA examination in April 2016, and it was followed by a November 2016 addendum opinion.  The examination report, when taken together with the addendum opinion, is fully adequate and substantially complies with the Board's prior remand directives.  

As such, the Board will proceed to the merits.  

Service Connection

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also 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).

Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

The service treatment records fail to reflect any symptoms attributed to a sleep disability.  Post service treatment records reflect that the Veteran underwent a sleep study in May 2007; was diagnosed with sleep apnea; and was treated with a CPAP machine.  

The Veteran, in his January 2010 notice of disagreement, took issue with the fact that the RO stated that sleep apnea was diagnosed three years after discharge.  He stated that following active duty (discharged in August 2004), he was in the national guard/reserves until he retired in February 2005.  He stated that he reported his sleep symptoms in December 2006 (one year and 10 months after retirement).  He was not afforded a sleep study until May 2007.  

The Veteran submitted largely identical October 2009 lay statements from W.W., M.Q., and M.D. (VBMS, 11/4/09).  The statements reflect that they witnessed the Veteran's sleep symptoms ("exceptional loud snoring and moments of limited or irregular no breathing occurrences") during service.  It states that these symptoms were accepted as a normal part of their occupational duty requirement as Military Police Soldiers.  They stated that they were required to work rotating 12+ hour day and night shifts, and that obtaining quality sleep periods greater than six hours were rare.  They stated that the Veteran's symptoms "indicated a sleep condition disorder unknown to us at that time."  The statements reflect that symptoms were apparent from November 2001 to April 2002 in Washington D.C. and from December 2003 to July 2004 in Guantanamo Bay, Cuba.  

Another October 2009 lay statement by M.D. reflects that additional symptoms included the Veteran dozing off in staff meetings and while seating at his desk in the office and hearing very load snoring (VBMS, 11/4/09).  

The Veteran underwent a VA examination in April 2016.  The examiner reviewed the claims file in conjunction with the examination.  He noted that the Veteran underwent a polysomnography (PSG) in 2007 and was diagnosed with sleep apnea.  He stated that a review of the claims file contains no entries for possible sleep apnea in service.  He noted that the Veteran requires the use of a breathing device; but does not require continuous medication.  

The April 2016 examiner opined that it was less likely than not that the Veteran's sleep apnea is related to service.  He stated that a review of the service treatment records finds no entry for evaluation of possible sleep apnea in service.  He noted that the Veteran underwent a sleep study approximately 3 years after release from service and mild sleep apnea was noted treated with CPAP.

Pursuant to a September 2016 Remand, the April 2016 examiner provided an addendum opinion in November 2016.  In it, he stated that he reviewed the lay statements regarding the Veteran's in-service symptoms.  He stated that "Sleep apnea is diagnosed by a sleep study and NOT by witnessed descriptions of sleep which are unreliable in making a diagnosis of sleep apnea.  There is lack of sufficient evidence in the military treatment records that the Veteran had a primary sleep disorder in service consistent with sleep apnea." 


Generally, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

The evidence of record has establishes the first of these elements - a current disability.  There is no doubt that the Veteran currently suffers from obstructive sleep apnea.  See, e.g., April 2016 VA examination report.

Moreover, in giving the benefit of the doubt to the Veteran on this material issue, the Board finds that he has satisfied the second element of service connection.  Although there is no medical evidence of a sleep disorder in service, the Veteran has presented lay evidence that he suffered various symptoms that could be attributed to a sleep disorder.  Lay statements reflect that the Veteran did not get much sleep; that he snored loudly; and that he intermittently stopped breathing.  

The Veteran's lay witnesses are considered competent to report the observable manifestations of a claimed disability.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 
6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service).  Moreover, there is little reason to doubt the credibility of the Veteran or the lay witnesses.  Consequently, the Board finds that the evidence establishes the second element of service connection.  

It is the third element of service connection in which the Veteran's claim falls short of equipoise.  The Board will next explain why it finds the preponderance of the evidence is against a nexus between the Veteran's current sleep apnea and the noted in-service event(s). 

Initially, insofar as the service treatment records fail to reflect any symptoms of sleep apnea or a diagnosis thereof, chronicity in service is not adequately supported by the service treatment records.  

There is also some doubt as to chronicity of symptoms following service. The Board notes that upon being discharged from service, the Veteran filed numerous claims in August 2004 for pseudofolliculitis barbae, a left index finger scar, right and left Achilles tendon disabilities, a big toe (left foot) disability, a tick bite on his left forearm, plantar fasciitis right heel, gall stones, abdominal scars, a tick bite to the lower right leg, a cervical disk fusion, cellulitis in his right 5th toe, a right knee disability, a right ankle disability, and a neck strain.  He failed to file claim for a sleep disorder at that time.  He underwent a general medical examination in September 2004.  He failed to mention any sleep disorder at that time.  The absence of any mention of any sleep disorder symptoms, particularly given the thoroughness with which he filed his other claims, strongly weighs against a finding of continuity.  

In so finding, the Board acknowledges Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015), in which the United States Court of Appeals for Veterans' Claims (Court) held that the absence of in-service and post-service complaints does not necessarily render the Veteran not credible when claiming continuity of symptomatology.  However, a careful reading of that case indicates that the Board is only prohibited from viewing the failure to file a claim as the sole consideration, thus indicating that it can still be appropriate to consider this among other factors.  Here, the Board also relies on the fact that symptoms such as snoring and intermittently stopped breathing would not have been observable by an unconscious Veteran.  The lay witnesses are certainly competent to report these symptoms; but they would not have been in a position to witness these symptoms upon the Veteran's discharge from service.  It is further noted that the disorder in question in Fountain was tinnitus, and there was a concern that the Veteran's claim of service connection for hearing loss in that case may have been intended to encompass ringing in his ears.  Here, there is no logical basis to assume that claims for which the Veteran sought service connection in August 2004 were intended to also encompass a sleep disorder.  See August 2004 VA Form 21-526 (listing approximately 20 disorders for which the Veteran was seeking service connection).  The Board also notes that the Veteran was aware of his sleeping problems in service.  In this regard, in his 2010 notice of disagreement the Veteran reported that abnormal sleeping patterns in service, to include noting that he slept a maximum of six (6) hours a night, and occasionally would wake up after four (4) hours of sleep.  The Veteran added that he did not request a sleep study during his active national guard/reserve period because he believed his symptoms were the natural results of his age and the MP duties he was performing.  In light of this evidence, the Board finds it reasonable that the Veteran would have filed for service connection as he had been aware of the existing of an abnormal sleeping pattern during service.  Thus, the underlying facts in the instant case appear to be distinguishable from those in Fountain, further supporting the conclusion that such case does not preclude the Board here from considering the Veteran's failure to file a claim, as one factor among others, in assessing credibility.

As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology.  However, if the competent medical evidence indicates that the current obstructive sleep apnea is related to the Veteran's active service, then an award of service connection would be appropriate.  In this vein, the VA attending physician, who conducted the April 2016 VA examination, concluded that the Veteran's obstructive sleep apnea was less likely than not related to service because there was no medical evidence of it in the service treatment records.  As the examiner noted, the symptoms reported by the Veteran and the lay witnesses do not necessarily equate to a diagnosis of obstructive sleep apnea (or any other sleep disability).  As this physician pointed out in his November 2016 addendum, lay descriptions of sleep symptoms are unreliable in making a diagnosis of sleep apnea.  

The Board finds the opinion of the VA physician to be persuasive evidence and deserving of much weight for several reasons.  Indeed, it was based on a review of the record, consideration of important facts, to include the lay statements noted above, and was offered following a physical evaluation of the Veteran.  Additionally, it was accompanied by a clear rationale of a person with medical training and experience.  The Board notes that no other competent evidence of record refutes that opinion.  

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran's obstructive sleep apnea falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Consequently, although the Veteran is competent to report symptoms, his statements as to etiology in this case are not competent and therefore lack probative value.  In this regard, sleep apnea is listed in VA's Rating Schedule as a restrictive lung disease.  38 C.F.R. § 4.97.  In light of this classification and the complex process of breathing (combined with sleeping), the Board finds the Veteran's opinion on etiology is not competent and is given no weight. 

Finally, in the Veteran's September 2013 substantive appeal, he suggested his sleep apnea may be related to his hypertension.  To the extent that this constitutes a claim for service connection on a secondary basis, the Board notes that the Veteran is not service connected for hypertension.  Consequently, there is no justification upon which to grant on a secondary basis.

As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for obstructive sleep apnea must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49, 53-54 (1990).



Service connection for obstructive sleep apnea is denied.

Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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