Citation Nr: 18142781 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-06 348A DATE: October 17, 2018 ORDER Entitlement to service connection for obstructive sleep apnea, to include on the basis of an undiagnosed illness, is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran’s fatigue and sleep disturbance symptoms have been attributed to a medical diagnosis of obstructive sleep apnea. 2. The Veteran’s obstructive sleep apnea did not originate in service, was not manifest within one year from service, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, to include on the basis of an undiagnosed illness, have not been met. 38 U.S.C. § 1110, 1117, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1976 to March 2000. These matters are on appeal from October 2013 and September 2014 rating decisions. In a September 17, 2018 letter, the Veteran withdrew his request for a videoconference hearing before the Board. 38 C.F.R. § 20.704(e) (2018). Service Connection 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. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The Board also observes that under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 U.S.C. § 1117(g). Entitlement to service connection for obstructive sleep apnea The Veteran contends his obstructive sleep apnea is related to service. Specifically, the Veteran asserts that his obstructive sleep apnea, with symptoms of fatigue and sleep disturbances, resulted from serving in the Persian Gulf War. After consideration of the entire record and the relevant law, the Board finds that service connection for obstructive sleep apnea, to include on the basis of an undiagnosed illness, is not warranted. The Board has reviewed all of the evidence of record, to include in-service and post-service treatment records, which does not support the finding that obstructive sleep apnea was demonstrated during the Veteran’s military service, that this claimed disability was compensably disabling within one year of separation from active duty, or that there is a nexus between the claimed disability and service. While the Veteran’s military personnel records (MPRs) confirm service in Southwest Asia, his service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of obstructive sleep apnea, symptoms thereof, or an undiagnosed illness. Additionally, the evidence does not indicate the Veteran’s obstructive sleep apnea manifested within one year of discharge. Post-service private treatment records indicate symptoms of and a diagnosis of obstructive sleep apnea beginning in 2013, approximately 13 years after separation from service. Thus, the Board finds that the Veteran’s obstructive sleep apnea did not have its onset in active service or within one year thereafter. Additionally, there is no medical or other competent evidence of a nexus between the Veteran’s obstructive sleep apnea and service. The Board notes that the only medical opinion to address the probability of a medical relationship between the Veteran’s obstructive sleep apnea, to include reported symptoms of fatigue and sleep disturbances, and active service weighs against the claim. The August 2014 VA examiner diagnosed with the Veteran with obstructive sleep apnea, noting an onset year of 2013. The examiner found no evidence of a diagnosed illness without an established etiology. On the contrary, the examiner opined that it is less likely as not that the Veteran’s obstructive sleep apnea is related to a specific exposure during service in Southwest Asia, indicating that obstructive sleep apnea is a disease with a clear and specific etiology and diagnosis. The examiner rationalized that several risk factors, to include obesity, narrow airway, and genetic predisposition, cause obstructive sleep apnea, with obesity being the most probable cause. The examiner concluded that that the Veteran’s high-risk factor for obesity is more likely the cause of his obstructive sleep apnea. The Board recognizes the Veteran’s statements linking his obstructive sleep apnea to service. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). While the Veteran is competent to report observable symptoms, the Board finds that determining the etiology of obstructive sleep apnea requires more than a layperson can be expected to competently address. In this case, the etiology of obstructive sleep apnea is a complex medical question that is not within the competence of a lay person and requires medical expertise. As there is no indication that the Veteran has any medical training, education or expertise, the Board finds he is not competent to etiologically link any such symptoms to a current diagnosis. Therefore, the Veteran’s lay assertions in the present case are outweighed by the existing medical opinion of record. As such, the Board finds that direct service connection is not warranted. The Veteran has also argued that his fatigue and sleep disturbances are signs or symptoms of an undiagnosed illness due to his service in Southwest Asia. As noted above, the record establishes that the Veteran’s fatigue and sleep disturbances are manifestations of a diagnosed illness, his obstructive sleep apnea. Therefore, they may not be characterized as signs or symptoms of an undiagnosed illness or a medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317(a)(ii) (2018). In summary, taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim of service connection for obstructive sleep apnea, to include on the basis of an undiagnosed illness. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for diabetes mellitus is remanded. Initially, the Board observes that the Veteran’s STRs appear to be incomplete. Specifically, his separation examination is not in his claims file. As the Veteran asserts through multiple lay statements that he was diagnosed with diabetes mellitus during service, this examination appears to be relevant to the Veteran’s claim because it may indicate a reported in-service injury upon separation from service. Thus, the Agency of Original Jurisdiction (AOJ) should attempt to obtain all outstanding STRs, to include the Veteran’s separation examination. Additionally, a VA medical opinion was sought as to whether the Veteran’s diabetes mellitus is related to in-service treatment for impaired glucose tolerance. In an October 2012 Disability Benefits Questionnaire (DBQ), the VA medical opinion provider opined that the Veteran’s diabetes mellitus was less likely than not incurred in or caused by an in-service injury, event, or illness, stating that the Veteran’s STRs did not reflect ongoing treatment for diabetes mellitus and that the elevated glucose level noted was an isolated incident. The Board notes that STRs associated with the Veteran’s claims file in February 2014 reflect multiple indications of elevated glucose levels and counseling regarding diabetes from March 1997 to January 2000. As the October 2012 VA examiner stated his review of the Veteran’s STRs showed one isolated incident of an elevated glucose level, it appears that the examiner did not have access to those STRs associated with the Veteran’s claims file in February 2014. For these reasons, the Board finds that an addendum opinion is necessary to adjudicate the claim. The matter is REMANDED for the following action: 1. Obtain all outstanding STRs for the Veteran’s active service, specifically, his March 2000 separation examination. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran’s claims file. 2. Thereafter, send the Veteran’s claims file to an appropriate medical professional to obtain an addendum opinion regarding the etiology of the Veteran’s diabetes mellitus. The Veteran’s electronic claims file must be made accessible to the designated professional for review. A complete rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided, and whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: Is it at least as likely as not that the Veteran’s diabetes mellitus had its onset in service or is otherwise directly related to service? In rendering the requested opinion, the medical opinion provider should consider the Veteran’s STRs which note: (1) a March 1997 consultation regarding weight reduction and diabetes; (2) a September 1998 entry noting a borderline glucose level; (3) a February 1999 entry noting impaired glucose tolerance; (4) a February 1999 entry noting the Veteran was mailed three months of diabetes education class schedules; (5) a March 1999 entry for which the Veteran was seen for a health psychology intervention as part of diabetes mellitus classes; and (6) a September 1999 entry noting elevated blood sugar. If the requested opinion cannot be provided without a new examination, one should be scheduled. 3. After completing all indicated development, the AOJ should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel