Citation Nr: 18145879 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-38 924 DATE: October 30, 2018 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for an eye disability is denied. Entitlement to service connection for allergies to include rhinorrhea is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations. 2. The evidence shows that the Veteran’s sleep apnea is a result of his service-connected PTSD. 3. The evidence does not show a diagnosis for an eye disability. 4. The evidence does not show that the Veteran’s allergies are related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.304 (2017). 2. The criteria for entitlement to service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.304 (2017). 3. The criteria for entitlement to service connection for allergies to include rhinorrhea have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1988 to February1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA). The Board further notes that while the RO has also identified the Veteran’s service connection claim for sleep apnea as a new and material evidence claim, the Board finds that because of the Veteran’s submission of additional relevant evidence within one year of the original denial of the claim for service connection in April 2012, the April 2012 rating decision is considered the rating action on appeal. See 38 C.F.R. § 3.156(b). Service Connection The Veteran contends that his disabilities are due to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A “qualifying chronic disability” is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317 (a), (c). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2)-(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (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 C.F.R. § 3.317(b). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sleep apnea As to a current diagnosis, the record reflects that the Veteran’s disability has been diagnosed as obstructive sleep apnea. As to the in-service incurrence, the Board notes that the Veteran’s service treatment records are silent for signs or symptoms of sleep apnea; however, the Board notes that the Veteran’s records demonstrate that he served in the Southwest Theater of Operations. The Board also notes that the Veteran has been awarded service connection for PTSD. As to the Veteran’s lay statements, the Board notes that the Veteran attributed his disability to his military service in the Persian Gulf War, his condition is currently severe, and he falls asleep at work. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA Gulf War examination in September 2011. The Veteran reported daytime hypersomnolence, snoring, and sleep disruption. Following the examination, the examiner noted that the Veteran had a history of sleep apnea, but the examiner found that the Veteran had a normal physical examination. See September 2011 Gulf War examination. The Board is unable to place any probative value on this opinion because the examiner did not provide a thorough and well-reasoned opinion regarding the nature and etiology of the Veteran’s sleep apnea. In December 2016, the Veteran attended an examination conducted by his private doctor. At the examination, the Veteran reported a history of snoring, tiredness, and witnessed pauses in respiration during sleep while serving on active duty. Following the examination, the Veteran’s private doctor diagnosed the Veteran with sleep apnea and indicated that the Veteran’s PTSD pertained to this diagnosis. The Veteran’s private doctor cited three studies regarding sleep apnea and military personnel and then opined that “it is possible at least as likely than not (50% or greater probability) that obstructive sleep apnea is associated with or due to service-connected PTSD diagnosis. See December 2016 private examination report. The Board finds this opinion to be highly probative because the examiner interviewed the Veteran, examined the Veteran, and then provided an opinion that was supported by three pertinent medical journal articles. In sum, the Board finds that service connection is warranted for the Veteran’s sleep apnea. In reaching this conclusion, the Board has reviewed the available lay statements, his medical history, and the available medical opinions. After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for sleep apnea is in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s sleep apnea. 2. Entitlement to service connection for an eye disability As to a current diagnosis, the record is silent for a diagnosed eye disability. As to the in-service incurrence, the Board notes that the Veteran’s service treatment records are negative for complaints, treatment, or a diagnosis for an eye condition while on active duty. See February 1992 separation examination. As to the Veteran’s lay statements, the Veteran has reported that his eyes are red, irritated, and dry with a burning sensation that hurts his eyes at all times. The Veteran has also reported that he experiences double/triple vision. Turning to the medical evidence at hand, the Board notes that the Veteran attended an October 2010 Gulf War examination. The Veteran reported that he had excess tearing in his eyes. Following the examination, the examiner indicated that the Veteran did not have an eye disability, the Veteran’s reaction to light was normal, and that the Veteran’s gross visual field assessment was also normal. See October 2010 Gulf War examination. In September 2011, the Veteran attended an additional VA examination. The Veteran did not report any eye symptoms at the time. Following the examination, the examiner indicated that the Veteran did not have an eye disability, the Veteran’s reaction to light was normal, and that the Veteran’s gross visual field assessment was also normal. See September 2011 Gulf War examination. In sum, the Board finds that service connection for an eye disability is not warranted. After a review of the record, the Board finds that the most probative pieces of evidence are the Veteran’s Gulf War examinations. This evidence demonstrates that the Veteran does not have a diagnosis of an eye disability at any time during the pendency of the appeal. In reaching this conclusion, the Board has considered the Veteran’s lay statements; however; the Veteran’s statements are outweighed by the findings of the medical examiners in this case. Accordingly, since the most competent and probative evidence of record demonstrates that the Veteran does not have a diagnosis of a disability at any time during the pendency of the claim on appeal, the Board must conclude that entitlement to service connection for an eye disability must be denied. 3. Entitlement to service connection for allergies to include rhinitis As to a current diagnosis, the record reflects that the Veteran’s condition has been diagnosed as rhinorrhea. As to the in-service incurrence, the Board notes that the Veteran’s service treatment records are silent for signs or symptoms of rhinorrhea; however, the Board notes that the Veteran’s records demonstrate that he served in the Southwest Theater of Operations. As to the Veteran’s lay statements, the Veteran has reported to VA that he has allergies. Specifically, the Veteran reported that he has a stuffy and runny nose all the time. Turning to the medical evidence at hand, the Veteran attended a Gulf War examination in October 2010. The Veteran reported congestion and rhinorrhea. The Veteran also reported no episodes of sinusitis during the past 12 months. Following the examination, the examiner noted that the Veteran’s sinus examination was considered normal. See October 2010 Gulf War examination. In addition, the Veteran attended a Gulf War examination in September 2011. The Veteran reported sinusitis during the past 12-month period. Following the examination, the examiner found that the Veteran’s sinus examination was normal. See September 2011 Gulf War examination. In sum, the Board finds that service connection for this disability is not warranted. The evidence before the Board contains medical guidance explaining that the signs or symptoms described by the Veteran as allergies and sinus congestion, as shown by examination, are attributed to the known clinical diagnosis of rhinorrhea. Thus, the Gulf War presumption of service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 does not apply. As the Veteran’s congestion has been attributed to the clinical diagnosis of rhinorrhea, the Board’s consideration now turns to the question of whether service connection for rhinorrhea is warranted on a direct basis. As the record does not contain any evidence showing symptoms of allergies or chronic rhinorrhea in service, and there is no medical evidence of a link between the Veteran’s current disability and his service, service connection for allergies to include rhinorrhea, is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel