Citation Nr: 1627477 Decision Date: 07/11/16 Archive Date: 07/22/16 DOCKET NO. 11-18 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a sleep disorder, to include insomnia and sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from May 1991 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a May 2014 decision, the Board denied the claim for service connection for a sleep disorder, to include insomnia and sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2015 Memorandum Decision, the Court set aside the Board decision and remanded the case to the Board for additional development and readjudication consistent with the Court's decision. The Board then remanded the matter to the Agency of Original Jurisdiction (AOJ) in March 2016. FINDING OF FACT The Veteran's currently diagnosed insomnia was incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for insomnia are met. 38 U.S.C.A. §§ 1110, (West 2014); 38 C.F.R. §§ 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that service connection for sleep disorder is warranted because it manifested in service and has continued since that time. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is required to consider and discuss all relevant evidence on both sides of the issue. Evans v. West, 12 Vet. App. 22, 30 (1998). Lay statements are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). A lay person is not competent, however, to opine as to medical etiology or render medical opinions. Barr, 21 Vet. App. at 307; see Grover v. West, 12 Vet. App. 109, 112 (1999). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The record establishes a current diagnosis of insomnia as well as difficulty falling asleep in service. Private and VA medical center treatment records document treatment for insomnia from 2000 to the present. During service, a May 1994 treatment note documented difficulty sleeping due to personal and job-related stressors. Thus, the first two elements of service connection have been met. The Board also finds that the third element - a nexus between the present disability and the in-service incurrence - has been met. The Veteran's enlistment examination did not list any sleep disorders, thus the Veteran is presumed to have been sound at enlistment. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). As noted above, a May 1994 service treatment note documented that the Veteran had trouble getting to sleep. A June 1994 consultation request also reported the Veteran's sleep issues, and his November 1994 Report of Medical History at separation stated that the Veteran had trouble getting to sleep for two months; it also noted that this issue had resolved. The first post-service medical record noting sleep disorder is a September 2000 private medical treatment note, which states that the Veteran has had insomnia for years, beginning in high school, and progressing since that time. This is confirmed in a September 2003 private medical treatment note, which reports that the Veteran has had insomnia since 1988 and that is has worsened since 1991. This correlates with the Veteran's reports that he has continued to experience difficulty falling and staying asleep since service (for example, in his December 2009 claim, June 2010 notice of disagreement, and May 2016 statement). Furthermore, the February 2010 VA medical examination (and April 2011 addendum) that found insomnia was unrelated to the Veteran's military service has been deemed inadequate by the Court, whereas a March 2016 VA medical examination found the Veteran's insomnia was at least as likely as not incurred in service, citing the service treatment records that documented trouble falling asleep. The Board finds this evidence sufficient to demonstrate a nexus between the Veteran's in-service difficulty falling asleep and his current diagnosis of insomnia. Therefore, the Veteran's claim of service connection for insomnia is granted. In granting this claim, the Board notes that the award of service connection in this case is limited to insomnia. The record also documents a diagnosis of sleep apnea since 2002, as confirmed in May 2002 and October 2002 sleep studies characterizing it as "mild obstructive sleep apnea" and "minimal obstructive sleep-disordered breathing." The only nexus opinions addressing sleep apnea are the February 2010 VA medical examination, the Veteran's statements that he had sleep apnea in service (such as his May 2016 statement), and the March 2016 VA medical examination. As discussed above, the February 2010 VA medical examination was deemed inadequate by the Court. As to the Veteran's nexus statements, the Board notes that he is competent to report symptoms he experienced, but a medical nexus opinion requires expert medical knowledge beyond that of a lay person. See Barr, 21 Vet. App. at 307. Because the Veteran has not provided evidence demonstrating that he qualifies as a medical expert , his opinion regarding nexus is not competent. Thus, the sole competent nexus opinion is the March 2016 VA medical examination, which found that the Veteran's obstructive sleep apnea is less likely than not related to his active duty service. This examination provides a detailed rationale, citing the lack of sleep apnea symptoms in service; the lack of in-service evaluation, diagnostic testing, and diagnosis; and the seven-year delay between the Veteran's separation from service and his 2002 diagnosis with sleep apnea. In addition, the March 2016 VA examiner opined that the Veteran's insomnia has not caused or aggravated the Veteran's sleep apnea, citing the lack of support for such a link in the medical literature, the pathophysiological process of apnea, and the definite and potential risk factors for obstructive sleep apnea (and noting the Veteran's current use of tobacco and the fact that current smokers are nearly three times more likely to have obstructive sleep apnea). Therefore, service connection for a sleep disorder includes the Veteran's diagnosed insomnia but not his obstructive sleep apnea. As a final matter, the Board finds that VA has substantially satisfied its duties to notify and assist the Veteran. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. ORDER Service connection for insomnia is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs