Citation Nr: 19123778
Decision Date: 03/29/19	Archive Date: 03/29/19

DOCKET NO. 17-55 433
DATE:	March 29, 2019

ORDER

Entitlement to service connection for obstructive sleep apnea is denied.

FINDING OF FACT

The Veteran does not have obstructive sleep apnea.

CONCLUSION OF LAW

The criteria for service connection for sleep apnea have not been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Army from November 1986 to February 1992, including service in the Southwest Asia Theatre of Operations.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The appeal previously included a claim of service connection for headaches.  The RO granted the claim in a March 2019 rating decision.  As this award represented a full grant of the benefits sought on appeal, the claim is no longer before the Board.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2).

1.  Entitlement to service connection for obstructive sleep apnea.

The Veteran seeks service connection for obstructive sleep apnea.  For the reasons that follow, the Board finds that service connection is not warranted. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021.  38 C.F.R. § 3.317(a)(1). 

The Veteran’s DD Form 214 shows that he received the Southwest Asia Service Medal with three bronze service stars and the Kuwait Libertarian Medal for his service in Southwest Asia.  As such, the Veteran is considered a Persian Gulf War veteran. 

Turning to the evidence of record, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to sleep apnea.

VA treatment records also are silent for any complaints of, treatment for, or a diagnosis of sleep apnea.  VA treatment records only show complaints of sleep disturbances related to the Veteran’s service-connected psychiatric condition.   See also December 2016 statement from Dr. R.W. (indicating that the Veteran’s chronic sleep impairment/disturbances stem from his depressive disorder).

Moreover, while the Veteran is considered a Persian Gulf War veteran, he has not reported or described, nor does the record contain, any symptomatology that could be attributable to qualifying chronic disability, such as an undiagnosed illness.

In light of the foregoing, the Board finds that the Veteran does not have a current diagnosis of obstructive sleep apnea.  As shown above, the medical record contains no evidence of treatment for or a diagnosis of obstructive sleep apnea.  There also is no evidence of record to suggest that the Veteran may have a qualifying chronic disability, such as an undiagnosed illness.

As the competent and probative evidence of record fails to reflect a current diagnosis of obstructive sleep apnea, service connection for such is not warranted.

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As the preponderance of the evidence is against the claim under any applicable theory of service connection, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	E. Mortimer, Associate Counsel