Citation Nr: 1807535 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-18 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA) including as due to Gulf War service. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1979 to November 2001. This matter is before the Board of Veterans' Appeal (Board) on appeal from a February 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDING OF FACT The Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service CONCLUSION OF LAW The requirements for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.317 (a) (2) (i).3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by letters dated December 2010 and April 2014. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the duty to assist, the Veteran's service treatment records, identified private treatment records, and VA outpatient treatment records have been obtained. Moreover, the Veteran has been afforded an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the January 2013 examiner performed a physical examination of the Veteran, took into account the Veteran's statements and treatment records, and provided adequate information required for rating purposes. The Veteran has not identified any additional, existing evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran. The Board also notes that neither the Veteran nor his representative has raised any issues with 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 the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 2. Service Connection The Veteran seeks service connection for obstructive sleep apnea (OSA). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.317, service connection is available on a presumptive basis for certain types of qualifying disabilities in Persian Gulf veterans with service in the Southwest Asia theater of operations. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a) (2). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317 (a) (1) (ii). In the case of 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. Further, lay persons are competent to report objective signs of illness. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (e.g. irritable bowel syndrome). A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a) (2) (i). As to the first element of service connection, a current disability, the record indicates that the Veteran was diagnosed with OSA in 2010. See February 2016 Capri Records. Therefore, this element is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran's OSA was incurred or aggravated during service. The objective medical evidence of record fully supports that conclusion. The review of the Veteran's service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to an OSA while on active duty. An October 2006 VA examination unrelated to the Veteran's OSA detailed the Veteran's report of back pain beginning in 1991, which made it difficult to sleep. At that time, the Veteran reported that his sleep was better because he was less active than he was in the military and he sleeps on his side to avoid back pain. In a December 2007 VA outpatient note provided that Veteran was concerned with his quality of his sleep pattern. The Veteran reported that most of time he feels refreshed when he wakes up, however his wife mentioned that the Veteran snored. The Veteran's wife, however, did not mention any other breathing issues. The examiner also noted that the Veteran did not report daytime somnolence. The Veteran underwent a sleep study in October 2010 due to snoring and excessive daytime sleepiness. The sleep study yielded a diagnosis of mild to moderate OSA. The Veteran was provided with a VA sleep apnea examination in January 2013. The examiner opined that the Veteran's 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 examiner provided that the omission of fatigue and issues with sleeping in previous VA examinations as support for his medical opinion. The examiner provided that the Veteran did not seek medical care for fatigue or sleeping issues until his wife told him was gasping for air beginning in 2007, despite the Veteran's reports that his sleeping issues began in 1991. The examiner also provided that Veteran sustained significant weight gain since service and weight gain is a major cause of OSA. Furthermore, the examiner provided that, the "evidence does not support (an) onset (of) OSA during his time in the service." In this case, as to the issue of whether the Veteran's OSA loss is related to his military service, the Board finds that the January 2013 VA sleep apnea examination is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of the Veteran's reported history, prior physical evaluation of the Veteran, and pursuant to the Board's remand instructions. Furthermore, the January 2013 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran contends that he has a disability or disabilities due to Gulf War Syndrome. The evidence does not support that the Veteran has a disability due to undiagnosed illness or medically unexplained chronic multisymptom illness. His symptoms have been diagnosed as OSA. He also has not been shown to have a medically unexplained illness defined by a cluster of signs and symptoms characterized by overlapping symptoms and signs and with features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. In the Veteran's case, he has been diagnosed with OSA with a defined etiology; thus, service connection under 38 C.F.R. § 3.317 is not warranted. 38 C.F.R. § 3.317 (a) (2) (i)). The Board acknowledges the statements provided by the Veteran, his spouse, and Q.S, a fellow serviceman of the Veteran's, regarding the Veteran's OSA. Q.S. served with the Veteran between June 1992 and June 1993, and he provided that Veteran often slept and snored during meetings with the Chain of Command. He also provided that the Veteran would fall asleep during idle time in the barracks. The Veteran's spouse provided that the Veteran began suffering from sleep disruptions in 2007. She provided that since that time the Veteran grasps for air, snores, and tosses while sleeping. Moreover, she reported that the Veteran falls asleep while driving. The Veteran has provided that the onset of his sleep apnea was in-service. However, the Board notes that Veteran provided in an October 2006 VA examination that his back pain, which began in 1991, caused a level of sleep impairment. Moreover, the Veteran also reported at the examination that his sleeping improved because was less active than he was in service. This seems to be inconsistent with the current assertion that sleep apnea was present at that time. In addition, to the extent that the Veteran has offered his own opinion linking his current sleep apnea to service, the Veteran, his spouse, and Q.S. are competent to report the symptoms that Veteran experienced and history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). However, as a lay person, they have not been shown to be capable of making medical conclusions, especially as to a complex medical opinion regarding the etiology of OSA. Given their lack of demonstrated medical expertise, the Board finds that the opinion of the January 2013 VA examiner, a medical professional, to be the most probative evidence of record as to the current nature and etiology of his OSA. As discussed above, the service treatment records do not support the Veteran's claim of onset of his disability during service. In fact, the Veteran was not diagnosed until nearly nine years after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The objective medical evidence ultimately outweighs the Veteran's lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran's OSA is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for OSA, including as due to Gulf War service is denied. ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as due to Gulf War service is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs