Citation Nr: 18145408 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 16-40 499 DATE: October 30, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran’s current obstructive sleep apnea was not incurred during his active service; any current obstructive sleep apnea is unrelated to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to June 1979, and again from October 2007 and October 2008. In the Veteran’s August 2016 substantive appeal, he requested a hearing before the Board. In November 2016, the Veteran withdrew his request for a hearing; consequently, there remain no outstanding hearing requests of record. 38 C.F.R. § 20.704(e). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for sleep apnea The Veteran claims entitlement to service connection for sleep apnea. Specifically, the Veteran contends that his sleep apnea was incurred during his period of active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board acknowledges that the Veteran has a current diagnosis of sleep apnea. The Veteran has submitted private medical records noting he was diagnosed with sleep apnea following a December 2013 sleep study. Further, the Board notes that the Veteran’s service treatment records state that the Veteran reported difficulty sleeping in December 2008, just 2 months after the Veteran completed his active duty service. However, the Board finds that the probative medical evidence of record does not establish that the Veteran’s current sleep apnea was incurred during or caused by his active service. 38 C.F.R. § 3.303, 3.317. The Board acknowledges that the Veteran is a Persian Gulf veteran based on his Southwest Asia service. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. §§ 3.317(e)(1), 3.317(e)(2). However, the Board finds that the Veteran does not currently have and has never had any objective indications of an undiagnosed or medically unexplained chronic multi-symptom illness. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. §§ 3.317(a)(1), 3.317(a)(2)(i), 3.317(a)(2)(ii), 3.317(a)(3), 3.317(b). Following a February 2015 VA Gulf War examination, the VA examiner opined: It is less likely than not (SMALLER than 50% likelihood) that Veteran's currently claimed Obstructive Sleep Apnea - a disease with a clear and specific etiology and diagnosis - is caused by or aggravated beyond its normal course by specific environmental exposures in the Gulf War…Obstructive sleep apnea is caused by soft tissue structures of the upper airway blocking the air passages. This can result from bony abnormalities resulting in smaller than normal air passages (e.g. micrognathia), or from soft tissues that are larger than normal (e.g. patients with Down's syndrome have larger tongues than other people, patients with enlarged adenoids, and excess submucosal fatty tissue seen in obese people). No specific environmental exposure causes these abnormalities. As explained by the medical opinion, the Veteran’s symptoms of difficulty sleeping and gasping for air while sleeping have been attributed to known clinical diagnoses of sleep apnea. As such, there is no “undiagnosed illness,” as defined by VA. Furthermore, the reported symptomatology is not a disease recognized as presumptive under 38 U.S.C. § 1117(d) and the record is absent of probative evidence that this symptomatology is a “medically unexplained chronic multi-symptom illness.” As such, the Board finds there is no probative evidence of symptoms potentially attributable to an undiagnosed Gulf War illness. Further, the Board finds that direct service connection is not warranted for sleep apnea. Though the Veteran’s service treatment records contain a December 2008 complaint of difficulty sleeping, the probative medical evidence of record shows it is less likely than not that the December 2008 complaint was related to the Veteran’s current sleep apnea. A June 2016 medical opinion explains: The Veteran has obstructive sleep apnea that was diagnosed by sleep study in 12/20/2013. [T]his is 5 years after separation. [O]bstructive sleep apnea is a disorder of the muscles of the oropharynx. [It] causes the muscles to close during sleep so that there is blockage of the airways…Obstructive sleep apnea is not related to [traumatic brain injury] or [posttraumatic stress disorder]. It is not related to having a concussion…[T]he symptoms of daytime sleepiness were never mentioned in his separation physical exam of 9/16/2008. [S]o it is less likely than not that the obstructive sleep apnea diagnosed some 5 years after service is related to any complaints of sleep problems. breathing problems, or post fatigue problems that are suggestive of PTSD. [The Veteran’s] post service fatigue suggests lack of sleep[,] not obstructive sleep apnea. [Posttraumatic stress disorder] causes insomnia or problems getting to sleep. It is a different disease than obstructive sleep apnea. Here, while service connection is in effect for PTSD, the examiner also states that OSA is not related to PTSD. In light of the above discussed medical opinion, the Board finds that the probative medical evidence is against the Veteran’s claim for service connection. The Board acknowledges the Veteran’s contention that his current sleep apnea was incurred during his period of active service. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, determining the etiology of the Veteran’s sleep apnea requires medical inquiry into the Veteran’s anatomical and physiological functioning. With regard to the specific issue in this case, whether his sleep apnea was incurred in or is related to service, falls outside the realm of knowledge of the Veteran in this case. See Jandreau, 492 F.3d at 1377 n.4. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions is low. The opinions of the February 2015 and June 2016 VA examiners are of significantly more probative value. (Continued on the next page)   The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s sleep apnea. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel