Citation Nr: 18152670 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 18-28 073 DATE: November 23, 2018 ORDER Service connection for sleep apnea is denied. Service connection for insomnia disorder is denied. FINDINGS OF FACT 1. Sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. Insomnia disorder clearly and unmistakably pre-existed the Veteran’s entrance to active duty and was not aggravated therein, and there was no permanent increase in the severity of such disorder beyond the natural progression during service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for insomnia disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2010 to January 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for insomnia disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Only such conditions recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). However, if a pre-existing disability is noted upon entry into service, then the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). The Veteran contends that he developed a sleep disorder, to include sleep apnea and insomnia disorder, during military service as a result of irregular sleep patterns, to include as while serving on deployments in Afghanistan from May 2011 to April 2012 and Kuwait from November 2013 to July 2014. As an initial matter, the Board notes that the Veteran has current diagnoses of sleep apnea and insomnia disorder as demonstrated by a May 2017 sleep study and September 2017 VA examination, respectively. In this regard, the Board notes that the Veteran has alleged that the May 2017 sleep study is inaccurate due to the small amount of time he was able to sleep; however, a review of the study does not reflect that insufficient data was obtained for a diagnosis of sleep apnea. The Veteran’s service treatment records include a May 2010 Report of Medical Examination, which was completed at the time of his enlistment, that reflects that his psychiatric system was normal upon clinical evaluation. However, the examiner noted that the Veteran had a positive history for psychiatric issues. In this regard, in his contemporaneous Report of Medical History, he reported that he had trouble sleeping nearly every night (difficulty falling asleep, waking up in the middle of the night, early morning waking or sleeping excessively) for a period of two weeks or longer. The Veteran subsequently clarified that he had trouble sleeping for the past three months and took an over-the-counter sleeping pill. The examiner noted that such was self-prescribed due to the Veteran’s altered sleep schedule as he had been sleeping late and going out with friends, described as too much activity. In August 2013, the Veteran reported shortness of breath with sleeping for two weeks; however, he was diagnosed with rhinitis. In a July 2014 post-deployment questionnaire, the Veteran reported difficulty falling asleep and occasionally takes an over-the-counter sleep aid. He indicated that he had worked rotating shifts and felt that such had made falling asleep difficult since his deployment. It was further noted that the Veteran indicated that he had sleep difficulties since his first deployment. In August 2017, a VA examiner reviewed the entirety of the record, to include the Veteran’s service treatment records and post-service treatment records, noted the diagnosis of sleep apnea in 2017, and opined that such disorder was less likely as not due to his military service duties and activities. In this regard, he noted that the Veteran’s service treatment records were silent for any chronic, recurring, or persistent sleep apnea-related complaints, but observed the Veteran’s report that he had trouble sleeping/insomnia due to an altered sleep pattern. The examiner indicated that, with sleep apnea, the individual suffers from hypersomnia as opposed to insomnia. Further, he noted that shortness of breath is a symptom from multiple causes, is not a diagnosis, and is not a characteristic associated with sleep apnea. The examiner also reported that sleep apnea is an anatomical/physiological disorder most commonly caused by airflow obstruction from the oropharynx to the lungs, which can be caused by either enlargement of the neck muscle mass, which, when supine, obstructs airflow or weakness of the posterior pharynx muscles that prevents keeping the airway open. He indicated that such anatomic changes are not caused by insomnia. The examiner noted that sleep apnea is commonly, but not exclusively, manifested by loud snoring, frequent sleep interruption due to the declining oxygen levels in the brain with the sensation of awakening with choking or gasping. Such signs and symptoms are not caused by insomnia. Rather, of great significance in the development of sleep apnea is the Veteran’s weight gain from service. His weight in service in 2010 was 205lbs and, in 2017, it was 247 with a BMI of 35+. The examiner indicated that such weight gain could have contributed to the development of his sleep apnea due to the increase in body mass and airway resistance. In September 2017, the Veteran underwent a VA examination, at which insomnia disorder was diagnosed. The examiner noted the Veteran’s reported that his sleep problems began in the military. Following a review of the entirety of the record, to include the Veteran’s service treatment records and post-service treatment records, interviewing the Veteran, and conducting a mental status examination, the examiner opined that the Veteran’s insomnia disorder, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by service, to include his in-service reports of trouble sleeping. In this regard, he noted that the record did not document permanent aggravation. Thereafter, in a May 2018 addendum, the examiner clarified that the Veteran’s entrance examination, to include his report of frequent trouble sleeping prior to his military service, was sufficient to support an Axis I diagnosis of insomnia disorder at such time. The Board places great weight on the opinions rendered by August 2017 and September 2017/May 2018 VA examiners as such considered all of the pertinent evidence of record and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no medical opinion to the contrary. To the extent that the August 2017 VA examiner indicated that the Veteran’s sleep apnea may be due to his weight gain between 2010 and 2017, which includes his military service from 2010 to 2015, VA’s General Counsel has determined that the onset of obesity cannot qualify as an in-service “event” for the purposes of establishing service connection. VAOPGCPREC 1-2017. Further, based upon the September 2017/May 2018 VA examiner’s opinion, the Board finds that the evidence demonstrates that the Veteran’s insomnia disorder, which was not noted upon his May 2010 entrance examination, clearly and unmistakably pre-existed his entrance to active duty and was not aggravated therein. Consequently, the presumption of soundness has been rebutted. Moreover, the foregoing evidence demonstrates that there was no permanent increase in the severity of the Veteran’s insomnia disorder beyond the natural progression during service. Specifically, while the Veteran has argued that he did not have a sleeping problem prior to service and his late nights were typical of a person his age, and his difficulty sleeping had its onset during service, his service treatment records reflect otherwise. In this regard, his difficulty sleeping was severe enough that he had been taking an over-the-counter sleeping pill for three months prior to his May 2010 entrance examination. Furthermore, the September 2017/May 2018 VA examiner reviewed the totality of the record and found that the Veteran’s May 2010 entrance examination reflected a diagnosis of insomnia disorder at such time. Therefore, the Board finds the Veteran’s arguments in this regard to be without merit. The Board also acknowledges the Veteran’s lay statements asserting that his sleep disorder, to include sleep apnea and insomnia disorder, is related to his active duty service, to include an altered sleep pattern on deployments. However, the Board finds that the question regarding the potential relationship between the Veteran’s sleep disorder, and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to describe his in-service experiences and current symptomatology, the Board accords his statements regarding the causation and/or aggravation of his sleep disorder little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation and/or aggravation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the instant case, the question of causation and/or aggravation of a sleep disorder, to include sleep apnea and insomnia disorder, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, the diagnosis and etiology of sleep apnea requires the administration and interpretation of specialized testing as well as knowledge of the anatomical structure of the neck and mouth. Further, the diagnosis and etiology of insomnia disorder requires specialized knowledge of the psyche. Therefore, as the Veteran does not have the appropriate medical training and expertise to offer an opinion as to the causation and/or aggravation of his sleep disorder, his lay assertions in this regard have no probative value. Therefore, the Board finds that sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service. Further, insomnia disorder clearly and unmistakably pre-existed the Veteran’s entrance to active duty and was not aggravated therein, and there was no permanent increase in the severity of such disorder beyond the natural progression during service. Consequently, service connection for sleep apnea and insomnia disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims for service connection for sleep apnea and insomnia disorder, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel