Citation Nr: 1758082 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 09-27 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include sleep apnea. 2. Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1968, June 1971 to March 1973, and December 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board remanded this appeal in January 2013 and in August 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's sleep apnea or other sleep disorder was not present in service, were not present for many years following service separation, and has not been medically related to his service or to a service-connected disability. 2. Resolving the benefit of the doubt in favor of the Veteran, the Veteran's allergic rhinitis was caused by his service in the Persian Gulf. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder, to include sleep apnea, have not been met. 38 U.S.C. § 1110, 1112, 1113, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. § 1110, 1112, 1113, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If the claimed disability is not one listed under 38 C.F.R. § 3.309, credible lay evidence of continuous symptoms can support the claim. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Sleep Disorder The Veteran contends that he suffers from a sleep disorder, to include sleep apnea, that was caused or aggravated by his service or by his service-connected ulcerative colitis. However, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a sleep disorder. First, the Board notes that the Veteran's primary contention is that he suffers from interrupted sleep due to diarrhea and symptoms related to ulcerative colitis. However, the evidence does not demonstrate a diagnosis of an underlying sleep disorder related to these symptoms. Sleep disrupted by physical symptoms, on its own without an underlying diagnosis, is not an identifiable disability for VA compensation purposes. The Board has also evaluated the claim pursuant to 38 C.F.R. § 3.317, regulations that govern undiagnosed illnesses or medically unexplained chronic multi-symptom illnesses as due to service during the Persian Gulf war. However, the evidence in this instance demonstrates that the Veteran's sleep disruption is due to his ulcerative colitis symptoms, or to his sleep apnea, and thus the cause of the sleep disturbance is a known clinical diagnosis. For these reasons, service connection for a sleep disorder is not warranted. With regard to the Veteran's sleep apnea, at his March 2013 VA examination, the Veteran's spouse reported that the Veteran's sleep apnea symptoms had begun after the Veteran returned from Saudi Arabia 1991. At that time, she noticed that he had apneic episodes that would last about 45 seconds and heavy snoring. The Veteran reported sinus symptoms beginning in Saudi Arabia, to include nasal congestion, draining, itchy eyes, and ear pains. However, despite the Veteran's and his spouse's report of sleep apnea symptoms, the March 2013 VA examiner determined that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by the Veteran's service. The examiner explained that in order to diagnose sleep apnea, careful medical observation was necessary, and evidence that the Veteran underwent such observation by a medical expert was not in the file prior to 2009. Thus, it was not within a 50 percent probability that the Veteran had sleep apnea in service or for many years following service separation. The January 2017 VA examiner was in agreement, explaining further that while the Veteran's family described snoring and noticeable sleep disturbance beginning after the Veteran's deployment, these symptoms did not equate to a diagnosis of sleep apnea. The examiner explained that while all of those with sleep apnea might snore, not all those who snored had sleep apnea. A diagnosis of sleep apnea must be based upon objective findings after a sleep study or polysomnogram. To render a diagnosis based upon the lay statements of record would be to resort to mere speculation, which was less than a 50 percent probability. Thus, a diagnosis of sleep apnea prior to 2009, or during service, could not be made. From the above opinions, the Board concludes that it is less likely than not that the Veteran had sleep apnea in service or for many years following service. Significantly, he was first diagnosed with sleep apnea in 2009, 18 years following service separation. The evidence of record is consistent with the two negative VA opinions. In an October 2007 statement in which the Veteran reported the symptoms and disabilities from which he suffered since service, he did not report sleep apnea symptoms such as snoring or daytime somnolence. A June 2008 report from the Veteran's private physician also relayed the Veteran's disabilities to date, but sleep apnea was not included in this list. In fact, prior to the Veteran's sleep study conducted in 2009, reports of sleep apnea, or snoring or apneic episodes, do not appear in the treatment records. The Board notes that the Veteran and his spouse are competent to report symptoms of snoring or the stoppage of breath while sleeping. However, without medical training or expertise, the Veteran and his spouse are not qualified to render a medical opinion as to the onset of his sleep apnea. The disability at issue is diagnosed using specific medical criteria and protocol, and thus falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the medical records in the file, and earlier lay statements by the Veteran, do not support the later contentions that he suffered from apneic episodes in service and since service separation. Thus, the credibility of the Veteran's and his spouse's lay statements are called into question. Therefore, the Board places greater probative weight on the VA medical opinions of record. With regard to the impact of the Veteran's Gulf War service, the March 2013 VA examiner explained that the medical literature did not demonstrate a possible relationship between Gulf War service and sleep apnea. Thus, there was no evidence of a causal relationship between sleep apnea and service. Finally, with regard to a secondary theory of entitlement, both the March 2013 and January 2017 VA examiners were in agreement that the medical evidence did not support a finding that the Veteran's ulcerative colitis caused or aggravated his sleep apnea. The March 2013 VA examiner explained that although the Veteran's ulcerative colitis predated his diagnosis of sleep apnea, the medical literature failed to support a causal relationship. Moreover, general medical principles did not support the Veteran's theory because the organs involved were anatomically and physiologically distinct from one another. Thus, there was no evidence to suggest that the Veteran's sleep apnea was either caused by or aggravated by his ulcerative colitis. This opinion is consistent with an earlier VA opinion provided in January 2011. The VA examiner at that time concluded that there was no plausible reason which would causally connect ulcerative colitis and sleep apnea based upon the medical literature. Based upon the above, the Board finds that service connection for a sleep disorder, to include sleep apnea, is not warranted. The competent and probative medical evidence outweighs the lay statements of record, as described above. Allergic Rhinitis The Veteran contends that his allergic rhinitis was caused or aggravated by his service, to include breathing in harmful fumes while serving in the Persian Gulf, or was caused or aggravated by his service-connected ulcerative colitis. On January 2017 VA examination, after reviewing the claims file in detail, the VA examiner first explained that allergic rhinitis was usually a nuisance that was rarely debilitating or disabling. It was difficult to estimate the cause of allergic rhinitis without specific allergen testing. The examiner went on to conclude that, if the Veteran had had pre-existing subclinical allergic rhinitis prior to his entry into his Persian Gulf service, than his service could have exacerbated or aggravated that condition. Although the January 2017 VA opinion is speculative in nature, the Board finds that the lay evidence of record favors the Veteran's claim that his service in the Persian Gulf caused or aggravated his allergic rhinitis. In a November 2007 statement, the Veteran described in detail harmful fumes and environmental factors that made it difficult to breathe while deployed. He reported smelling oil well fires, dense smoke all around him, large amount of animal dung, jet fuel fumes, sand, and other contaminants. He reported that ever since his deployment, he has suffered from allergic rhinitis. When taking into consideration the Veteran's credible and consistent reports of experiencing rhinitis since his service in the Persian Gulf, alongside the positive January 2017 VA opinion, the Board finds that the evidence is at least in equipoise, and thus service connection for allergic rhinitis as a result of his Persian Gulf service is warranted. ORDER Service connection for a sleep disorder, to include sleep apnea, is denied. Service connection for allergic rhinitis is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs