Citation Nr: 18148651 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-39 991 DATE: November 8, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1117, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159(a)(2), 3.303(a), (e)(2), 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army National Guard, with a period of active duty for training from November 1994 to May 1995, and active duty service from February 2003 to May 2004, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 1. Sleep Apnea Syndromes The Veteran seeks entitlement to service connection for sleep apnea. He contends that his currently diagnosed sleep apnea is related to service. The Veteran further asserts that the VA medical examination was inadequate because the medical examiner based his opinion on an alleged misdiagnosis following a May 2010 sleep study, specifically he notes the supposed difference of opinions between a registered respiratory therapist’s notes and those shared by a nurse practitioner and a sleep specialist doctor. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection may also be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an 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 undiagnosed illness, 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). Notably, laypersons are competent to report objective signs of illness. Id. A “qualifying chronic disability” is a chronic disability resulting from either: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms; or (3) any diagnosed illness that the Secretary determines in regulations prescribed under 38 C.F.R. § 3.317 warrants a presumption of service-connection. 38 U.S.C. § 1117. Turning to the evidence of record, the Board notes that the Veteran was diagnosed with obstructive sleep apnea in June 2013. See VA treatment record dated June 10, 2013. Therefore, the current disability element is met. The Board has considered the Veteran’s assertion that his obstructive sleep apnea was caused by his service in Southwest Asia. See April 2014 Statement in Support of Claim. The Veteran served in the Southwest Asia Theater of Operations in support of Operation Enduring Freedom, as shown by service personnel records. Thus, the Board finds that the Veteran is a “Persian Gulf Veteran” for the purposes of 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317(e)(2). However, the Board finds that presumptive service connection, based on his service in Southwest Asia, is not warranted because the Veteran is diagnosed with a clinically known disease, sleep apnea, and the medical evidence does not otherwise persuasively show that his sleep apnea is related to an undiagnosed illness or medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317(a). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Regarding the second element of service connection, in-service incurrence of a disease or injury, the Board initially notes that the Veteran’s service treatment records do not reveal complaints, diagnosis, or treatment for sleep apnea, and his April 2005 medical examination shows that the Veteran endorsed that he did not have frequent trouble sleeping. Additionally, the service treatment records do not contain reports of other sleep apnea symptoms, such as excessive daytime sleepiness, insomnia, or habitual snoring. Moreover, the Veteran’s service treatment records do not support his assertions that they contain evidence demonstrating that he complained of morning headaches during service. While his service treatment records contain entries regarding headaches, those symptoms were diagnosed as associated with allergies and influenza, as was confirmed in a March 2006 VA examination, where the examiner acknowledged the Veteran’s in-service complaints of headaches, but also noted those headaches were associated chronic nasal congestion. Thus, evidence of symptoms in service and ever since service is not persuasively shown. However, an injury in the form of exposure to environmental toxins (burn pits, dust, and dirt) during his service in Southwest Asia is conceded as consistent with the circumstances of such service; therefore, the second element of service connection is met. See 38 U.S.C. § 1154(a). As to the third element of service connection, a nexus between a current disability and an in-service incurrence of an injury or disease, there is one medical opinion of record. In the October 2014 VA examination, the examiner acknowledged the Veteran’s self-reported accounts of loud snoring, poor sleep with post-sleep fatigue since his active service, and morning headaches, which were all resolved after starting continuous positive airway pressure (CPAP) therapy. The examiner then noted that VA treatment records revealed the Veteran underwent an initial sleep study in May 2010, which two VA doctors reviewed and ultimately did not diagnose the Veteran with sleep apnea. The examiner also noted the subsequent May 2013 sleep study that was performed due to the Veteran’s persistent symptoms, which resulted in the Veteran being diagnosed with mild obstructive sleep apnea. Additionally, the examiner noted the Veteran’s weight gain between the May 2010 and May 2013 sleep studies. Ultimately, the examiner opined that it was less likely than not that the Veteran’s sleep apnea had its onset during his active service from 2003 to 2004 because he did not have sleep apnea during the May 2010 sleep study and was only diagnosed with sleep apnea three years later in the May 2013 sleep study. Additionally, the VA examiner also concluded that “to say the Veteran’s onset of sleep apnea is secondary [to his service in Southwest Asia] would require speculation since the definitive cause of sleep apnea has not been established by medical science.” As noted earlier, the Veteran asserted that he deemed the examination inadequate, in that the examiner based his opinion on an alleged misdiagnosis regarding the results of the May 2010 sleep study. However, the October 2014 examination included a review of the Veteran’s claims file, treatment records, 2010 and 2013 sleep studies, and considered the Veteran’s self-reported history of symptomatology. Therefore, the Board concludes that the October 2014 VA examination was adequate and entitled to probative weight. The Board has also considered the Veteran’s assertions that his sleep apnea had its onset in service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Whether the Veteran’s current sleep apnea is relating to his service in Southwest Asia or headaches requires medical expertise to determine. Thus, the Board finds the VA medical opinion more probative than the Veteran’s statements. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk