Citation Nr: 1631967 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 14-27 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1994 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDING OF FACT The probative evidence does not demonstrate that the Veteran's currently diagnosed obstructive sleep apnea is attributable to the Veteran's active service or any incident of service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury incurred, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). A review of the Veteran's service treatment records shows that he complained of having difficulty sleeping on several occasions while in service. Specifically, on a report of medical history dated in August 1998, the Veteran reported that he had trouble sleeping following a motor vehicle accident in service, which he attributed to the chronic back and lower extremity pain that resulted from that accident. In addition, on a psychologic evaluation dated in October 1998, the Veteran reported experiencing sleep deprivation due to chronic physical discomfort and heightened stress. Beyond these complaints in 1998, however, the Veteran's service treatment records are negative for any complaints, diagnoses, or treatment related to sleep impairment or obstructive sleep apnea. Significantly, on his January 1999 separation examination, it was not noted that the Veteran had any difficulty sleeping or any diagnosis related to obstructive sleep apnea. The Veteran reported sleeping difficulty on the report of medical history associated with the January 1999 separation examination; however, he again attributed this sleeping difficulty to physical discomfort as a result of injuries he experienced due to an in-service motor vehicle accident. The Medical Evaluation Board report dated in April 1999 made no mention of sleeping difficulties or other symptoms of obstructive sleep apnea. Post-service VA outpatient records reveal that the Veteran continued to report having difficulty sleeping following his discharge from service, and that this sleeping difficulty was attributed to the chronic pain he experienced. On a July 2002 outpatient record, he reported that he was "afraid to go to sleep" because he had a strange, uneasy feeling regarding sleeping. An August 2002 psychologist note shows that the Veteran reported sleep disturbances, extreme fatigue, and weakness. VA treatment records from 2003 to 2004 show that the Veteran continued to report sleeping difficulties and daytime exhaustion. On a March 2004 outpatient record, it was noted that the Veteran was continuing to experience sleep problems and slept only two to three hours a night, but there was no connection made to obstructive sleep apnea at that time. On a September 2004 VA examination for other claimed disabilities, it was noted that the Veteran had sleep problems and was prescribed medication nightly for pain. Obstructive sleep apnea was first diagnosed in an October 2009 sleep study. Prior to the study, the Veteran reported symptoms of insufficient sleep, snoring, and witnessed apneas. The examiner noted that the Veteran had a documented history of depression, and that it was not possible at the time to distinguish symptoms of depression from symptoms due to sleep disturbance. Following the overnight sleep study, obstructive sleep apnea, sleep related hypoxemia/hypoventilation, and possible restless legs syndrome were diagnosed. Subsequent to the October 2009 sleep study, VA treatment records show that the Veteran has been continually treated for obstructive sleep apnea and was issued a continuous pulmonary airway pressure machine to help alleviate his symptoms. The Veteran submitted a lay statement from his wife dated in April 2012. She asserted that she had known the Veteran before he entered service. According to her, he did not complain of any health problems prior to entering service in July 1994, to include any difficulties sleeping. After entering service, she stated that she noticed that he was frequently tired. She also noted symptoms of snoring, coughing in his sleep, and interruption of breathing, all of which she asserted began after he entered service. At a VA examination in June 2014, the Veteran reported that he first developed symptoms of extreme daytime fatigue and loud snoring in approximately 1995. According to him his wife would frequently wake him up in the middle of the night when he would stop breathing for periods of time. He told the examiner that after he woke up in the middle night he would be hesitant to return to bed for fear of cessation of breathing. He reported that he was first evaluated for his symptoms while in service in 1996 or 1997, but was not diagnosed with obstructive sleep apnea until an October 2009 sleep study. After the physical examination, a review of the claims file, and with consideration of the Veteran's statements, the June 2014 VA examiner opined that it was "less likely than not" that the obstructive sleep apnea was either incurred in service or was otherwise attributable to service. In support thereof, the examiner noted that although the Veteran reported sleep difficulties while in service, he consistently attributed his symptoms to somatic pain due to injuries resulting from a motor vehicle accident. As the examiner pointed out, the Veteran did not offer any other symptomatology while in service beyond this reported somatic pain to suggest to military physicians that his sleep disturbance was actually a manifestation of obstructive sleep apnea. Upon consideration of the evidence, the Board finds that service connection for obstructive sleep apnea is not warranted. Although the service treatment records do document that the Veteran complained of sleep difficulties while in service, the medical evidence does not link the reported in-service sleep difficulties to the currently diagnosed obstructive sleep apnea. As laypersons, the Veteran and his wife are competent to report symptoms of obstructive sleep apnea, including difficulty sleeping, and when those symptoms began. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, their lay statements are not competent evidence to establish the etiology of his currently diagnosed sleep apnea or that those symptoms were symptoms of sleep apnea diagnosed a decade after service discharge. Medical causation involves questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The lay statements made by the Veteran and his wife were considered by the VA examiner when providing the opinion as to whether sleep apnea was related to the Veteran's military service. As the VA examiner in 2014 conducted a physical examination and thoroughly reviewed the Veteran's entire medical history as it pertains to obstructive sleep apnea, to include the lay statements of record, the Board finds that the medical opinion is highly probative to the issue at hand. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that only independent medical evidence may be considered to support Board findings; the Board may not base a decision on its own unsubstantiated medical conclusions). Accordingly, the Board finds that the preponderance of the probative evidence is against the claim of service connection for obstructive sleep apnea. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for obstructive sleep apnea is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs