Citation Nr: 21000997 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-14 521 DATE: January 6, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for colitis, claimed as chronic diarrhea, is denied. FINDINGS OF FACT 1. The most probative evidence of record does not show that sleep apnea is related to an in-service injury, illness, or event. 2. The most probative evidence of record does not show that colitis, claimed as chronic diarrhea, is related to an in-service injury, illness, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for colitis, claimed as chronic diarrhea, have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November1990 through May 1991, which includes service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in July 2019. In October 2019, these matters were remanded for further development. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War and is a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Persian Gulf War Veterans with an undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI) that manifested itself during service in the Southwest Asia area of operation or to a disability rate of 10 percent or more no later than December 31, 2021 will be presumed to have established service connection. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A “qualifying chronic disability” includes an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317(a)(2)(i). 1. Entitlement to service connection for sleep apnea The Veteran asserts that his sleep apnea is related to service. Indeed, he contends that his sleep apnea is caused by exposure to environmental containments during service in the Southwest Asia Theater. In August 2013, he was afforded a VA examination for his sleep apnea. The examiner opined that the Veteran did not have a diagnosis of sleep apnea, although the examiner noted symptoms attributable to sleep apnea. Subsequent to the August 2013 VA examination, treatment notes record a diagnosis of sleep apnea. See August 2015 VA treatment note. Pursuant to the October 2019 Board remand, a VA medical opinion was obtained in December 2019. The examiner reviewed the claims file and opined that it is less likely than not that the sleep apnea is related to the Veteran’s active military service. The examiner stated sleep apnea is a diagnosis of known etiology and can be explained, therefore it is not due to unexplained etiology. As well there is no known peer reviewed evidence to say that gulf war exposures would cause sleep apnea. The examiner noted that obstructive sleep apnea occurs when the muscles in the back of the throat relax. These muscles support the soft palate, the triangular piece of tissue hanging from the soft palate (uvula), the tonsils, the sidewalls of the throat and the tongue. When the muscles relax, the airway narrows or closes as one breathes in. The examiner explained that a person cannot get enough air, which can lower the oxygen level in the blood. A person’s brain senses the inability to breathe and briefly rouses someone from sleep so that they can reopen their airway. This awakening is usually so brief that one does not remember it. The examiner indicated that risk factors for sleep apnea include excessive weight, enlarged neck circumference, narrowed airway, being male, being older, family history, smoking, use of alcohol/sedatives, and nasal congestion. The examiner again concluded that the Veteran’s sleep apnea is less likely due to in service southwest Asia theatre service or exposures. The December 2019 VA medical opinion is the most probative evidence of record, because it is based on a review of the Veteran’s medical history, as well as the clinical findings documented in treatment records, and the symptomatology reflected in the medical and lay evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. There is no competent opinion to the contrary. Although the Veteran is competent to report having experienced symptoms of loud snoring, episodes of choking while snoring, daytime somnolence, dyspnea, tiredness, fatigue, and decreased stamina, he is not competent to determine that these symptoms were manifestations of sleep apnea related to his military service, to include an in-service illness, injury, event, or exposure to environmental containments. The issue is medically complex, as it requires knowledge of medical causation and the interpretation of complicated diagnostic medical testing. Even assuming the Veteran had the in-service symptoms as reported, absent competent evidence linking the Veteran’s current sleep apnea to his exposures and/or symptoms in service, service connection must be denied. Consequently, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for colitis, claimed as chronic diarrhea The Veteran asserts that his colitis is related to service. Indeed, he asserts that his colitis is the result of exposure to environmental containments in the Southwest Asia Theater. In August 2013, he was afforded a VA examination for his colitis. The examiner opined that the Veteran’s chronic diarrhea is an undiagnosed disability but does not fit the Gulf War definition for presumptive illnesses, because all likely possibilities for such abnormality has not been ruled out. In August 2018, he was diagnosed with chronic colitis at a VA examination. The examiner opined that there are numerous causes of colitis, but none are due to environmental hazards. On July 2019, the Veteran submitted medical literature supporting that a new medical study had found a link between gastrointestinal illnesses and veterans who served in the Southwest Asia Theater. Pursuant to the October 2019 Board remand, a VA opinion was obtained in December 2019. The examiner reviewed the claims file and opined that it is less likely than not that the colitis is related to the Veteran’s active military service. The examiner stated colitis is a chronic digestive disease characterized by inflammation of the inner lining of the colon. Infection, loss of blood supply in the colon, Inflammatory Bowel Disease (IBD) and invasion of the colon wall with collagen or lymphocytic white blood cells are all possible causes of an inflamed colon. The examiner indicated that there are numerous known causes for colitis that include infection, IBD, Crohn’s disease and ulcerative colitis, ischemic colitis, allergic colitis, and microscopic colitis. The examiner indicated that colitis is a diagnosis of partially explained etiology therefore such does not qualify for a diagnosis of unexplained etiology or a diagnosis of unknown etiology. The examiner indicated that per VA regulations Gulf War illness will include such gastrointestinal (GI) disorders that are undiagnosable or due to a diagnosis such as IBD that has known etiology that is a functional disorder and not a structural disorder. The examiner indicated that colitis is a diagnosis related to structural changes therefore precluded from service connection due to Gulf War disorder. The December 2019 VA medical opinion is the most probative evidence of record, because it is based on a review of the Veteran’s medical history, as well as the clinical findings documented in treatment records, and the symptomatology reflected in the medical and lay evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. The 2019 opinion provides a detailed rationale for why the claimed colitis is not related to service and is not considered a presumptive disease for Persian Gulf veterans. The examiner noted the colitis was structural in nature and was of a partially explained etiology. As such, colitis does not come within the definition of presumptive disease under 38 C.F.R. § 3.317. There is no competent opinion to the contrary. Although the Veteran is competent to report having experienced symptoms of GI discomfort, he is not competent to determine that these symptoms were manifestations of a GI disability related to his military service, to include an in-service illness, injury, event, or exposure to environmental containments. The issue is medically complex, as it requires knowledge of medical causation and the interpretation of complicated diagnostic medical testing. (Continued on the next page)   Absent a competent opinion linking the Veteran’s colitis to service, service connection must be denied. Consequently, the benefit-of-the-doubt rule does not apply, and service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.