Citation Nr: 1323022	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  09-17 667	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a disability manifested by chronic muscle aches and cramps, to include as due to an undiagnosed illness.

2.  Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse, Ms. F.L.


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel
INTRODUCTION

The Veteran's military records establish that he served on three separate periods of active duty in the United States Air Force.  His first period of active duty was from December 1979 to December 1992.  His second period of active duty was from October 2001 to July 2003.  His third and final period of active duty was from December 2003 to September 2004.  He served in Southwest Asia.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claims of entitlement to service connection for a disability manifested by chronic muscle aches and cramps (to include as due to an undiagnosed illness) and sleep apnea.

At an October 2012 hearing at the RO, the Veteran, accompanied by his spouse and his representative, testified before the undersigned Veteran's Law Judge.  A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. 

In February 2013, the Board remanded the case to the RO via the Appeals Management Center in Washington, D.C., for further evidentiary and procedural development.  Thereafter, the denials of the service connection claims on appeal were confirmed in a June 2013 supplemental statement of the case.  The case was returned to the Board in June 2013, and the Veteran now continues his appeal.


FINDINGS OF FACT

1.  The Veteran had active military service in Southwest Asia.

2.  The Veteran's chronic muscles aches and cramps are attributable to a known clinical diagnosis, are not attributable to undiagnosed illness or an unexplained chronic multi-symptom illness, and did not, as a chronic disabling condition, have their onset during any of his periods of active military service.  
3.  Sleep apnea did not have its onset during any of the Veteran's periods of active military service.  

CONCLUSIONS OF LAW

1.  A disability manifested by chronic muscle aches and cramps was not incurred in active duty, and may not be presumed to have been due to an undiagnosed illness or an unexplained chronic multi-symptom illness incurred in active duty.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1117, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2012).  

2.  Sleep apnea was not incurred in active duty.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. § 3.303 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and to assist

The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

The Veteran's claims for service connection decided herein were filed in October 2006.  A notice letter addressing the applicability of the VCAA to these claims and of VA's obligations to the appellant in developing the claims was dispatched in March 2007, which fully satisfied the above-described mandates.  No timing of notice defect exists as fully compliant notice was sent prior the initial adjudication of the claims in the December 2007 RO rating decision now on appeal.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) explaining fully the issues and (2) discussing the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

At the October 2012 Board hearing, the presiding Veterans Law Judge's questions and the oral testimony of the Veteran and his witness focused on the elements necessary to substantiate, inter alia, the Veteran's claims for VA compensation for a disability manifested by chronic muscle aches and cramps (to include as due to an undiagnosed illness) and for sleep apnea.  [See transcript of October 24, 2012 Board hearing.]  Thus, the Board finds that the Veterans Law Judge presiding over the October 2012 hearing has substantially fulfilled her obligations as required under 38 C.F.R. § 3.103(c)(2).  Bryant, supra.

VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the claimant of its duty to assist in obtaining records and supportive evidence.  In its February 2013 remand, the Board instructed the RO/AMC to attempt to obtain any outstanding medical records relating to the Veteran's treatment for his sleep apnea and complaints of chronic muscle aches and cramps, and to provide him with the appropriate VA medical examinations for purposes of obtaining medical nexus opinions addressing the claimed disabilities at issue.  VA has obtained service treatment and personnel records pertinent to the Veteran's periods of active duty, as well as private and VA medical treatment records dated January 2005-June 2013. The Board has also reviewed the Veteran's claims file as it appears on the Virtual VA electronic database for any pertinent clinical records.  

Pursuant to the Board's remand of February 2013, VA provided the Veteran with VA examinations in April 2013.  Although nexus opinions were not provided by the clinicians who examined the Veteran in April 2103 due to the unavailability of his claims file for review of his pertinent medical history, addendum nexus opinions were obtained in June 2013 from a physician who had opportunity to review the Veteran's claims file in its entirety.  The opinions specifically addressed the service connection issues on appeal.  The Board finds that the physician's opinions of June 2013 are deemed to be adequate for purposes of adjudicating the VA compensation claims decided herein, as they adequately address, contemplate, and incorporate the findings of the Veteran's pertinent clinical history and his prior treatments and examinations of record.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The Board finds that the RO/AMC has substantially complied with its instructions regarding the evidentiary development ordered by the Board in its remand of February 2013.  Therefore, no additional remand for corrective action is required.  [See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order.  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999): Exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions.]  

Based on the foregoing, the Board finds that VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his service connection claims decided herein, and thus no additional assistance or notification is required. The record does not show that neither the Veteran nor his representative have indicated that they had any additional evidence or arguments to submit in support of the current claims.  He has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  Bernard v. Brown, 4 Vet. App. 384 (1993).  Thus, the Board will proceed with the adjudication of this appeal.  

Service connection analysis

The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

To establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2012).

With chronic disease shown as such in service so as 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.  This rule does not mean that any documentation of treatment for complaints of snoring or muscle aches and cramps during a period of active duty will permit service connection, respectively, for sleep apnea or a disability manifested by chronic muscle aches and cramps (to include as due to undiagnosed illness), first shown as a clear-cut clinical entity, at some later date.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).   The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  In this regard, the Board observes that the Veteran is presently service-connected for Type II diabetes mellitus (currently rated 20 percent disabling), chronic brain syndrome associated with Type II diabetes mellitus (currently rated 30 percent disabling), peripheral neuritis of the left and right hand associated with Type II diabetes mellitus (each hand currently individually rated 10 percent disabling), peripheral neuritis of the left and right foot associated with Type II diabetes mellitus (each foot currently individually rated 10 percent disabling), and hypertension (currently rated 10 percent disabling).  The Board has reviewed the evidence and notes that the Veteran does not contend, nor does the objective medical record indicate that his sleep apnea and muscle aches and cramps are causally or etiologically linked to any of his aforementioned service-connected disabilities, or are otherwise aggravated (which is to say permanently worsened beyond their natural progression) by them.  As such, the Board finds no such secondary nexus is demonstrated and no further consideration of service connection for sleep apnea and muscle aches and cramps on the theory of proximate causation is warranted.

Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more.  38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012).  Unlike service connection on a direct basis as discussed below, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service.  Service connection is presumed unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.317(c) (2012); Gutierrez v. Principi, 19 Vet. App. 1 (2004).

The term "Persian Gulf Veteran" means a veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations, which includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(d) (2012).  For purposes of § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary of VA determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection.  38 C.F.R. § 3.317(a)(2) (2012).  An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.  Further, laypersons are competent to report objective signs of illness.  Gutierrez v. Principi, 19 Vet. App. 1 (2004).

A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms (and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) and means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C) (2012). 

Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  See 38 C.F.R. § 3.317(a)(3) (2012).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  See 38 C.F.R. § 3.317(b) (2012).

For purposes of § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4) (2012).

Compensation shall not be paid under § 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c) (2012).

(a.)  Entitlement to service connection for a disability manifested by chronic muscle aches and cramps, to include as due to an undiagnosed illness

The Board finds that the Veteran is a Persian Gulf veteran for the purposes of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, and he could thus potentially qualify for service connection under 38 C.F.R. § 3.317.  As will be discussed in further detail below, however, the Veteran's claimed symptoms of chronic muscle aches and cramps have been associated with a known diagnostic cause.  As such, the Veteran's claimed condition is not an undiagnosed illness or indicator of unexplained multi-symptom illness, and it may not be presumed related to the Veteran's service under provisions applicable to undiagnosed illness or unexplained chronic multi-symptom illness.  38 C.F.R. § 3.317 (2012).

As relevant, the Veteran has presented competent written accounts and oral testimony at his October 2012 Board hearing of experiencing persistent muscle aches and cramps in approximately 2003 - 2004, coincident with active service, which he attributes to his period of service in Southwest Asia.  His service medical records show normal pertinent musculoskeletal and neurological findings throughout all three of his documented periods of active duty and do not demonstrate onset during any of his periods of active duty of any musculoskeletal or neurological diagnoses manifested by persistent muscle aches and cramps.  Following his separation from his third and final period of active duty in September 2004, the first post-service notation of his complaints of muscle aches and cramps is presented in a VA treatment dated in January 2005.  The clinical record thereafter reflects that the Veteran presents ongoing complaints of persistent muscle aches and cramps.  On VA examination in April 2013, the examining clinician noted these complaints but obtained only normal clinical findings with respect to the Veteran's musculature and diagnosed him only with inner thigh muscle cramps at night.  

In June 2013, the Veteran's claims file and his entire clinical history was reviewed by a physician, who thereafter presented an opinion that stated (in pertinent part) the following:

It is LESS LIKELY THAN NOT that the Veteran's claimed muscle cramps. . . are proximately due to, incurred, was caused by or aggravated beyond its natural and normal aging process by his time spent in military service.  These conclusions are based on a comprehensive review of the clinical files [in VA's possession] and current medical literature.  My reasons are [that] [a]lthough the Veteran serv[ed] in. . . Southwest Asia. . . during the Persian Gulf War, the Veteran's claimed muscle cramps and aches are LESS LIKELY THAN NOT associate[d] with an undiagnosed illness.  As the [April] 2013 [VA] examination demonstrated[,] 1) there was no muscle injury; 2) no muscle weakness, fatigue or impairment of motion; 3) 5/5 muscle strength; and 4) ONLY inner thigh cramps only at night.  Therefore, it is as least as likely as not that the inner thigh cramps were consistent with rest cramps.  Although the true etiologies of rest cramps are not known, [they are] consistent with a normal and natural aging process as well as the [body's] attempt to re-oxygenate muscle tissue.  The pathophysiological nature of muscle cramps "often originates. . . from a single focus or several foci within the muscle and the spreads throughout. . . in an irregular pattern."  In this case, it is as least as likely as not isolated to and involving the Adductor Magnus muscle complex.  Therefore, there is no precedenc[e] for a nexus to Gulf War. . . undiagnosed illness[.]   

The Board has considered the pertinent evidence discussed above and finds that the weight of the objective clinical evidence is against the Veteran's claim for VA compensation for a disability manifested by chronic muscle aches and cramps, to include as due to undiagnosed illness.  In adjudicating the merits of this claim, the Board accords great probative weight to the physician's nexus opinion of June 2013, due to his medical accreditation and expertise and because his opinion is informed by a review of the Veteran's entire pertinent clinical history and therefore reconciles any conflicts, irregularities, or inconsistencies in the record as they pertain to the claim at issue.  As relevant, the June 2013 medical opinion has definitively determined that the Veteran's constellation of subjective symptoms, primarily manifested as persistent muscle aches and cramps, are due to the normal and natural aging process and not to any chronic disability of the musculature or to an undiagnosed illness.  As such, they neither represent an actual chronic disability that can be linked to active service nor do they represent manifestations of undiagnosed illness associated with Southwest Asia service under 38 U.S.C.A. § 1117.  Therefore, the Veteran's claim in this regard must be denied.  

To the extent that the Veteran attempts to relate his persistent muscle aches and cramps to his periods of active service based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board first notes that he is not shown in the record to be a trained medical clinician.  His military records reflect that he served all of his periods of active duty in the Air Force in the capacity of a security specialist.  Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific question in this case regarding the nature and medical etiology of his persistent muscle aches and cramps falls outside the realm of common knowledge of a lay person, he lacks the competence to provide a diagnosis based on these symptoms and a probative medical opinion linking them to service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are not competent to diagnose internal medical conditions, which may be presented only by a trained physician or medical specialist.) 

In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for a disability manifested by chronic muscle aches and cramps, to include as due to an undiagnosed illness, as the preponderance of the evidence is against allowing his claim.  Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   

(b.)  Entitlement to service connection for sleep apnea

The Veteran and his spouse testified in October 2012 that he began snoring persistently in his sleep in approximately 2003, during active service.  The Veteran's service medical records do not show a diagnosis of sleep apnea during any period of active duty.  The earliest post-service indication of sleep apnea is objectively presented in the medical records in January 2005, when the Veteran was provided with a sleep study to rule out sleep apnea.  Although the results of the January study were inconclusive for demonstrating sleep apnea, subsequent medical records objective establish that the Veteran now has a current diagnosis of sleep apnea.  These records reflect that he has been prescribed a continuous positive airway pressure (CPAP) machine to assist his nighttime interrupted breathing due to sleep apnea.  An April 2013 VA examination provided a diagnosis of obstructive sleep apnea.  
Following a review of the Veteran's claims file, service medical records, and pertinent medical history, a physician presented the following nexus opinion in June 2013, which states in pertinent part:

It is LESS LIKELY THAN NOT that the Veteran's. . . sleep apnea. . . [is] proximately due to, incurred, was caused by or aggravated beyond its natural and normal. . . process by his time spent in military service.  These conclusions are based on a comprehensive review of the clinical files [in VA's possession] and current medical literature.  My reasons are [that] [a]lthough the Veteran's wife described the Veteran's sleep habit[s] in terms of his snoring. . ., [and] [s]noring is extremely common in [cases of obstructive sleep apnea], [snoring by itself] is not sufficient for the diagnosis [of obstructive sleep apnea].  [Post-service VA assessments of the Veteran's weight in 2010, 2011 and 2013 indicate that the Veteran is obese, with a steady weight increase demonstrated, going from 288 pounds in 2011 to 311 pounds in 2013.]  Current medical literature state[s] that "obesity is another important correlate of [obstructive sleep apnea]."  Therefore, it is LESS LIKELY THAN NOT that the Veteran's claimed sleep apnea was proximately due to his time in service or an undiagnosed illness.  It is as least as likely as not that the Veteran's claimed sleep apnea is proximately due to his current body habit[us].

The Board has considered the pertinent evidence discussed above and finds that the weight of the objective clinical evidence is against the Veteran's claim for VA compensation for sleep apnea.  In adjudicating the merits of this claim, the Board accords great probative weight to the physician's nexus opinion of June 2013, due to his medical accreditation and expertise and because his opinion is informed by a review of the Veteran's entire pertinent clinical history and therefore reconciles any conflicts, irregularities, or inconsistencies in the record as they pertain to the claim at issue.  As relevant, the June 2013 medical opinion has definitively determined that the Veteran's sleep apnea did not have its onset during any period of active duty, stating, in essence, that the Veteran's persistent snoring in service beginning in 2003, per his spouse's testimony, was not evidence in and of itself that demonstrated onset of his sleep apnea in service.  The examiner's objective opinion attributed the Veteran's sleep apnea to his obesity and body habitus, but definitively determined that there was no link between his sleep apnea with any of his periods of active duty or even with undiagnosed illness (although a theory of service connection for sleep apnea as due to undiagnosed illness is not contended by the claimant).  Therefore, as the clinical evidence does not associate the Veteran's sleep apnea with his active duty, his claim for VA compensation for this disability must be denied.  

To the extent that the Veteran attempts to relate his sleep apnea to his periods of active service based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board notes (as it has earlier in this case) that he is not a trained medical clinician.  Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific questions in this case regarding the nature, medical etiology, and time of onset of his sleep apnea fall outside the realm of common knowledge of a lay person, he lacks the competence to provide a diagnosis based on these symptoms and a probative medical opinion linking them to service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are not competent to diagnose internal medical conditions, such as sleep apnea, which may be presented only by a trained physician or medical specialist.) 

In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for sleep apnea, as the preponderance of the evidence is against allowing his claim.  Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).




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ORDER

Service connection for a disability manifested by chronic muscle aches and cramps, to include as due to an undiagnosed illness, is denied.

Service connection for sleep apnea is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs