Citation Nr: 18148927 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-39 850 DATE: November 9, 2018 ORDER Service connection for obstructive sleep apnea on the basis of direct service connection is denied. REMANDED Service connection for obstructive sleep apnea as secondary to the service-connected psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with obstructive sleep apnea. 2. The currently diagnosed obstructive sleep apnea did not have its onset during service and is not directly related to active duty service. CONCLUSION OF LAW The criteria for direct service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1990 to March 1998 and again from May 1999 to October 2011. This matter is on appeal from an October 2012 rating decision issued by the Regional Office (RO) in Baltimore, Maryland. There is sufficient evidence to deny the obstructive sleep apnea claim on the theory of direct service connection (under 38 C.F.R. § 3.303(a),(d)). The Board is bifurcating and remanding the secondary service connection theory because further development is needed to decide that theory on the merits. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff’d, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). The issue of secondary service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Neither the Veteran nor the representative has raised any questions regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Based on the foregoing, the Board finds that all relevant documentation, including VA and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326(a). The duties to notify and assist have been met. Service Connection 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, 1131; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (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. Direct Service Connection for Obstructive Sleep Apnea In the instant claim, the Veteran contends that the obstructive sleep apnea began during active duty service after a personal assault in 1998. See August 2016 Substantive Appeal (Form 9). After a review of all the evidence, the Board finds that the Veteran is diagnosed with a current disability of obstructive sleep apnea, and was first diagnosed with sleep apnea after service separation. See November 2012 VA Examination. The Board also finds that the weight of the lay and medical evidence shows that the obstructive sleep apnea is not directly related to service under 38 C.F.R. § 3.303(a). The evidence shows that the in-service reports and symptoms of sleep difficulties are a symptom of the service-connected psychiatric disorder, for which the Veteran is already compensated. According to service treatment records, the Veteran reported no trouble sleeping in May 1999, February 2004, and September 2007. On a November 2009 Fleet and Marine Corps Health Risk Assessment, the Veteran received an unhealthy score in the sleepy category, but no rationale was provided. The Veteran reported sleep disturbances in May 2011 and, in July 2011, the Veteran reported that he had frequent trouble sleeping since serving in the Army in 1998. See May 2011 Service Treatment Records, July 2011 Service Treatment Records. While the service treatment records note that the Veteran reported some instances of sleep impairment, the records do not contain any lay or medical evidence specific to symptoms of obstructive sleep apnea symptoms in service. Even though the Veteran claims he experienced symptoms of obstructive sleep apnea in service, the Veteran is not competent to provide this lay evidence because he does not have personal knowledge of his most of the claimed symptoms while he sleeps. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (“Personal knowledge is that which comes to the witness through the use of his senses – that which is heard, felt, seen, smelled, or tasted.”). Only a third party lay observer can report a veteran’s symptoms of sleep apnea while the veteran sleeps. In this case, the Veteran did not proffer any additional evidence from lay people who are competent to observe the claimed symptoms in service. Moreover, there is no medical evidence in the service treatment records to suggest obstructive sleep apnea or related symptoms during service. Post-service medical treatment records do not indicate that the obstructive sleep apnea is directly connected to service. In the July 2011 private examination, the Veteran reported that he had vivid nightmares and flashbacks related to the 1998 personal assault and avoided going to sleep. The private examiner diagnosed parasomnia, defined as “any of various disorders of sleep characterized by abnormal behavioral or physiological activity (such as sleepwalking ot night terrors) during sleep or in the transitional stage between sleep and wakefulness.” See Merriam-Webster Medical Dictionary https://www.merriam-webster.com/medical/parasomnia. The private examiner concluded the examination by deferring to psychiatric treatment for posttraumatic stress disorder. The private examiner did not provide an opinion as to whether the obstructive sleep apnea is related to service. In November of 2012, the Veteran submitted to a sleep apnea test administered by a VA examiner. The VA examiner diagnosed obstructive sleep apnea, which is the first diagnosis of obstructive sleep apnea of record, 14 years after symptoms reportedly began. In a December 2012 VA examination, the VA examiner reviewed the results of the November 2012 sleep apnea test and opined that the Veteran’s symptoms of sleep problems are not supportive of a clinical diagnosis of sleep apnea. See December 2012 VA Examination. The VA examiner opined that the obstructive sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner’s rationale was that a sleep test was not conducted in service even though the claimed symptoms began after the 1998 personal assault. Lastly, the compensation received for the service-connected psychiatric disorder accounts for sleep impairment as a symptom of the psychiatric disorder. The RO granted service connection for the psychiatric disorder in October 2012 and assigned a 30 percent rating effective November 1, 2011 (the day after service discharge), based on symptoms of anxiety, chronic sleep impairment, and depressed mood. See October 2012 Rating Decision. In July 2013, the RO increased the rating for psychiatric disorder to 70 percent, effective October 17, 2012, citing symptoms of an inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, chronic sleep impairment, anxiety, suspiciousness, and depressed mood. As the Veteran is being compensated for chronic sleep impairment as part of the service-connected psychiatric disorder, he cannot be compensated for chronic sleep impairment in a claim for service connection for obstructive sleep apnea. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of direct service connection for obstructive sleep apnea. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Secondary Service Connection for Obstructive Sleep Apnea is Remanded. The Veteran contends that the obstructive sleep apnea is secondary to the service-connected psychiatric disorder, which arose from the 1998 personal assault during service. See August 2016 Substantive Appeal (Form 9). In the December 2012 VA examination report, the VA examiner opined that the obstructive sleep apnea was less likely than not directly related to service. The VA examiner did not provide an opinion as to whether the obstructive sleep apnea was caused or aggravated by (worsened in severity beyond a normal progression by) the service-connected psychiatric disorder. A VA examination would assist in determining whether the obstructive sleep apnea is secondary to the service-connected psychiatric disorder. The theory of secondary service connection for sleep apnea is REMANDED for the following action: 1. Schedule an appropriate VA examination to assist in determining the nature and etiology of the obstructive sleep apnea as it relates to the service-connected psychiatric disorder. The VA examiner should offer the following opinions: Was the obstructive sleep apnea caused by the service-connected psychiatric disorder? Was the obstructive sleep apnea aggravated by the service-connected psychiatric disorder? 2. Thereafter, readjudicate the issue of secondary service connection for obstructive sleep apnea. If the benefit sought on appeal is not granted, the Veteran and representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel