Citation Nr: 1328425 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 05-32 195A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a sleep disorder, including sleep apnea, to include as secondary to service- connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had service in the Army National Guard and had active duty for training from February 1990 to June 1990. The Veteran had active military service from September 1990 to July 1991, with service in Southwest Asia from October 1990 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case was most recently before the Board in May 2013. The May 2013 Board decision denied the veteran's claim of entitlement to service connection for chronic fatigue syndrome and remanded the issue on appeal for additional development. FINDINGS OF FACT 1. The Veteran's sleep apnea is chronically worsened by service-connected disability. 2. There has been no demonstration by competent clinical, or credible lay, evidence of record that sleep apnea is etiologically related to service or service-connected disability. CONCLUSION OF LAW Sleep apnea is aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. 38 C.F.R. §§ 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable Board decision below to grant the claim for service connection for sleep apnea, any deficiency as to compliance with the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot. Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. Effective October 10, 2006, The regulation which governs claims for secondary service connection, was amended during the pendency of this appeal, effective October 10, 2006. The current 38 C.F.R. § 3.310 (b) sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran's service-connected disabilities include posttraumatic stress disorder (PTSD), migraine headaches, and sinusitis. While the Veteran has asserted that his sleep apnea is aggravated by his PTSD, in written argument dated in August 2013 the Veteran's representative also asserted that the Veteran's sleep apnea was likely aggravated by his service- connected sinusitis. The Board finds that the competent medical evidence is at least in equipoise as to whether the Veteran's sleep apnea is chronically worsened by service-connected disability. The April 2010 VA sinus examination reveals that the Veteran has difficulty breathing through his nose and takes medication for his recurrent sinusitis disability. The April 2010 VA epilepsy and narcolepsy examination reveals that in addition to causing breathing difficulties for the Veteran his sinusitis also results in constant nasal congestion. Consequently, due to the breathing difficulties and constant nasal congestion, the Veteran has indicated that he is not able to fully utilize his prescribed CPAP machine to help alleviate his sleep apnea. This appears to be confirmed in the findings from the June 2013 VA examination. Based on the foregoing, and with resolution of doubt in the Veteran's favor, the Board finds that the evidence of record supports a grant of service connection for sleep apnea disability on the basis of aggravation by service-connected sinusitis disability. The Board notes that health professionals have indicated that the Veteran also has sleep difficulties as a result of his service-connected PTSD. The Board notes, however, that such sleep impairment (including nightmares and sleep interruption) constitute, in part, the Veteran's evaluation for his service-connected PTSD. As such, service connection for sleep impairment or for insomnia is not for application in this case. The Board finds that the competent medical evidence fails to demonstrate that the Veteran's sleep apnea is causally related to his service. The Board notes that no health professional has asserted as such, and service records contain no complaints or diagnoses of sleep apnea. In the same manner, the Board can find no opinion linking or showing a causal relationship between sleep apnea and any of the Veteran's service-connected disabilities. To the extent that the Veteran is personally associating his sleep apnea with service-connected disability, the Board emphasizes that the Veteran is not a medical professional, and that his opinion relating such a nexus is not deemed competent. Further, the Veteran is not competent to establish a matter that requires medical knowledge, such as providing the etiology of his sleep apnea. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the preponderance of the evidence is against service connection for sleep apnea on a direct basis. In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, and has resolved doubt in the Veteran's favor in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 1154(b). ORDER Service connection for sleep apnea disability, on the basis of aggravation by service-connected disability, is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs