Citation Nr: 1751267 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-02 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1988 to December 1988, December 1990 to March 1991, and February 2003 to February 2004 with additional Army National Guard service considered active duty from March 2004 to May 2004 and September 2005 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St Louis, Missouri. Jurisdiction is currently held by the RO in Houston, Texas. The Veteran testified before the Board at an October 2014 hearing at the RO in San Antonio, Texas; a transcript of the hearing is of record. This matter was previously before the Board in December 2014, June 2016, and June 2017. FINDING OF FACT Obstructive sleep apnea was not present during service; did not develop as a result of any incident during service; and is not related to or aggravated by a service-connected disability. CONCLUSION OF LAW Obstructive sleep apnea was not incurred in or aggravated by active service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for sleep apnea as it was incurred after his service from December 1990 to March 1991 and worsened after he began his service from February 2003 to February 2004. 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). Similarly, to establish a right to compensation for a present disability secondary to a service-connected disability, a veteran must demonstrate the existence of (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To demonstrate chronic disease in service, 38 C.F.R § 3.303(b) requires "manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time . . . ." Id. "When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity." Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Sleep apnea is not a chronic disability under 38 C.F.R. § 3.309(a), and reports of a continuity of symptomatology cannot support a claim for service connection under 38 C.F.R. § 3.303(b). The Board will consider any lay reports of a continuity of symptoms, however, in the context of a claim for service connection under 38 C.F.R. §§ 3.303(a) and (d). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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). Turning first to service connection as incurred in or due to any incident of service, the Board finds service connection is not warranted on this basis. The record confirms the presence of the first element of service connection - a current disability - in VA treatment records and VA examinations that document obstructive sleep apnea. As for the second element - an in-service injury - the lay statements submitted by fellow service members indicated that the Veteran snored loudly, would stop breathing during the night, and was tired during the day. Accordingly, an in-service injury is established. The record does not establish the third elements, however: a link between the Veteran's hypertension and any incident of active duty service. In March 1991, a medical examination found the Veteran to be normal. A July 1993 examination also found everything normal, and the Veteran denied past or current "Frequent trouble sleeping" in a July 1993 Report of Medical History. An August 1995 examination similarly found the Veteran to be normal and the Veteran denied past or current "Frequent trouble sleeping" in an August 1995 Report of Medical History. This pattern continued in the 2000s - the Veteran denied current or past "Frequent trouble sleeping" in a September 2000 Report of Medical History. In March 2003, the Veteran denied "Still feeling tired after sleeping," headaches, "Difficulty breathing," and "Difficulty remembering." In an August 2003 Medical History Screening, the Veteran indicated that he could sleep at night "Only with medication," although he did not indicate the reason for the medication. In an October 2004 Health Assessment, the Veteran again denied "Still feeling tired after sleeping," headaches, "Difficulty breathing," and "Difficulty remembering." At a May 2005 examination for mental health, the Veteran reported problems sleeping but said it was due to being awakened by pain in his arm, hand, or neck. At a June 2005 VA examination for chronic fatigue, the Veteran related that his wife told him he snores and has sleep apneic episodes, although the Veteran related his sleep disturbance to his neck pain. In an October 2005 Health Assessment, the Veteran again denied "Still feeling tired after sleeping," headaches, "Difficulty breathing," and "Difficulty remembering." Following his periods of service, the Veteran had a sleep study done in June 2006. At the sleep study, the Veteran reported "loud snoring for the last fifteen years" as well as "excessive daytime sleepiness since 1990 after returning from Desert Storm." The Veteran also stated he had "episodes of gasping during sleep" and "witnessed apnea events." The June 2006 sleep study diagnosed "Very MILD obstructive sleep apnea." A July 2011 VA examination listed the date of onset of the Veteran's sleep apnea as "mid 1990s" but also noted that the condition did not occur during active service and instead occurred after service. No rationale was provided. A March 2015 VA examination found it less likely than not that the Veteran's sleep apnea is etiologically related to his active-duty service. The examination found "no complaints in service that would suggest a medical diagnosis of sleep apnea." The examination also emphasized that military service is not in itself a risk factor for sleep apnea. In a follow-up July 2016 VA examination opinion, the examiner again found no relationship between sleep apnea and the Veteran's service. The examiner considered the lay evidence of symptoms but found it was not supported by the available clinical evidence, could be caused by other medical conditions, and was not identified with sufficiently specificity to base a diagnosis of sleep apnea or determine its date of onset. The Veteran submitted lay statements from himself, his wife, and fellow service members. The Veteran stated in the January 2009 substantive appeal that he had symptoms of sleep apnea in service. The Veteran's wife reported in an April 2007 statements that since their marriage in December 2000, the Veteran would stop breathing "on several occasions during sleep." In four additional lay statements, fellow service members wrote that during the Veteran's February 2003 to February 2004 active duty service, he would snore loudly, stop breathing in the night, and seem tired during the day. As noted above, these lay statements were considered by the July 2016 VA examination opinion, which determined that the lay evidence of symptoms was not supported by the available clinical evidence (the Board notes, for example, that the Veteran had no in-service records of sleep apnea or sleep disturbance and the Veteran denied still feeling tired in October 2004 and October 2005 assessments). The July 2016 opinion provider also stated that the symptoms identified could be caused by other medical conditions and were not sufficiently specific to provide the basis for a sleep apnea diagnosis. Moreover, to the extent the lay statements offer a medical opinion, the record does not demonstrate that the Veteran or the other statement providers have the requisite medical expertise to give such an opinion. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Thus, the lay statements are outweighed by the medical evidence as well as the Veteran's contemporaneous service treatment records. Considering the evidence as a whole, the Board finds that service connection is not warranted based on direct connection to service. The majority of the Veteran's in-service examinations and assessments reported the Veteran to be normal and without sleep apnea or tiredness after sleeping. This includes the October 2004 Health Assessment following his service from February 2003 to February 2004. In addition, sleep apnea was not diagnosed until June 2006, and the medical evidence addressing connection to service is entirely negative, finding the reported in-service symptoms are insufficient to relate them to later-diagnosed sleep apnea. Accordingly, the Board finds that service connection is not warranted based on a direct link to service. In addition, the Board finds that service connection is not warranted on a secondary basis. As discussed above, the Veteran has a current disability: obstructive sleep apnea. He is also service connected for multiple disabilities, including posttraumatic stress disorder (PTSD). After reviewing the evidence, however, the Board must conclude that the preponderance of the evidence weighs against a finding of a nexus between the Veteran's service-connected conditions, including PTSD. The March 2015 VA examination reported that the Veteran's PTSD and other service-connected disorders are not risk factors for obstructive sleep apnea. The examination also related that there is no known association between his service-connected disabilities and obstructive sleep apnea. Additionally, the examination highlighted that PTSD and other psychiatric disorders do not lead to obstructive sleep apnea, which is a disorder of the airway. Furthermore, the medical evidence weighs against a finding that the Veteran's service-connected disabilities, including PTSD, aggravated the Veteran's sleep apnea beyond its natural progression. Again, the March 2015 examination emphasized that the Veteran's service-connected disabilities were not risk factors for sleep apnea and have no known association with obstructive sleep apnea. For these reasons, service connection for obstructive sleep apnea as secondary to or aggravated by service-connected disabilities, including PTSD, is not warranted. ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is denied. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs