Citation Nr: 21001707 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-15 264A DATE: January 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected depressive disorder or as due to Gulf War illness is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's obstructive sleep apnea was incurred in or otherwise related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected depressive disorder or as due to Gulf War illness have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1994 to January 1995, July 2004 to November 2007, and from October 2008 to October 2009. He received the Combat Action Badge, among several others for his service. This matter comes before the Board on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In August 2018, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2). Service Connection The Veteran seeks entitlement to service connection for obstructive sleep apnea as he believes it is related to service-connected major depressive disorder. See June 2015 Notice of Disagreement. In the alternative, the Veteran asserts that his sleep apnea is related to his active duty service in Iraq. See August 2015 Statement from Veteran. Through his representative, the Veteran asserts that service connection is warranted for obstructive sleep apnea as a result of Gulf War Illness. See December 2020 Informal Hearing Presentation. 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 requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117 (a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a “qualifying” chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). The term “objective indications of chronic disability” includes both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: chronic fatigue syndrome; fibromyalgia; functional gastrointestinal disorders (excluding structural gastrointestinal diseases). See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(2)(i). The term medically unexplained chronic multi-symptom 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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(2)(ii). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the Board notes that the Veteran’s service treatment records (STRs) from June 1993 to June 1999 are unavailable. The RO deemed the Veteran’s STRs unavailable after exhaustive efforts to secure them were unsuccessful. Although the unavailable records are not for the period of service related to the Veteran’s claim, the Board nonetheless recognizes that in cases where the STRs are unavailable, the Board has a heightened duty to assist the Veteran in the development of his claim. Cuevas v. Principi, 3 Vet. App. 542 (1992). A July 2008 VA general medical examination, performed three months before the Veteran’s third period of active duty service, showed the Veteran complained of depression, difficulty sleeping, and excessive somnolence. A February 2009 service treatment record indicated that the Veteran reported midback pain, which caused his inability to sleep. The Veteran received a physical examination and was not diagnosed with sleep apnea or a sleep related condition. Post-service, in October 2012, the Veteran was diagnosed with insomnia; rule out obstructive sleep apnea. The Veteran complained of sleep disturbance, increased snoring, and shortness of breath at night. The VA examiner recommended a sleep study. In June 2013, the Veteran underwent a polysomnogram and was diagnosed with mild obstructive sleep apnea. In June 2015, VA examined the Veteran; his obstructive sleep apnea diagnosis was noted. The examiner rendered the clinical assessment that the Veteran’s obstructive sleep apnea was not proximately due to his service-connected depressive disorder. The stated rationale was that the Veteran has depressive disorder which is service-connected and non-service-connected obstructive sleep apnea. Although both conditions may coexist, and both conditions may present with similar symptoms, both are different disease entities with different pathophysiological processes, not etiologically related. The examiner expounded on the fact that medical literature does not support a direct etiological relation between having depressive disorder and sleep apnea. In a March 2019 addendum opinion, the VA examiner again reviewed the relevant medical literature and opined that the Veteran’s obstructive sleep apnea is not aggravated by his service-connected depressive disorder. In addition to opining that obstructive sleep apnea and depressive disorder have different pathologies and are not etiologically related, the examiner explained that obstructive sleep apnea is caused by mechanical factors which are not related to or aggravated by depressive disorder. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding the Veteran’s obstructive sleep apnea is directly or indirectly related to service-connected depressive disorder, any Gulf War exposures, or military service. The Board recognizes that the Veteran currently is diagnosed with obstructive sleep apnea. See July 2013 VA treatment record. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. However, the evidence of record does not support a finding of an in-service event or a medical nexus between his current diagnosed disability and his active duty service. Regarding direct service connection, the Veteran’s STRs do not include any indication he suffered from obstructive sleep apnea. The Board acknowledges that in July 2008, prior to his third period of active duty service, the Veteran complained of depression, difficulty sleeping, and excessive somnolence. However, the Veteran was provided a medical examination in February 2009 during his third period of active duty service and was not diagnosed with sleep apnea or a sleep related condition. Additionally, the Veteran was not diagnosed with sleep apnea until 2013; several years after his last period of active duty service. Indeed, the only evidence indicating a medical connection exists between his current disability and his active duty service are the Veteran’s own lay statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his obstructive sleep apnea is related to active duty service and may be caused by Gulf War Illness, he is not competent to make such a medical determination. See Jandreau, 492 F.3d at 1372. Such medically complex opinions require specialized training and knowledge and are not capable of lay observation. As such, the Board finds the Veteran’s contentions are of little probative value. Regarding the Veteran’s claim that his obstructive sleep apnea is related to or aggravated by his depressive disorder, the Board finds the June 2015 VA medical opinion and the March 2019 addendum opinion to be of great probative value because the conclusion is supported by medical rationale and is consistent with the verifiable facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The VA examiner determined that the Veteran’s obstructive sleep apnea is not related to or aggravated by the depressive disorder as the conditions have different pathophysiological processes and are not etiologically related. The Veteran’s obstructive sleep apnea has a clear and specific etiology and diagnosis. Thus, his obstructive sleep apnea is not a “qualifying chronic disability” in which presumptive service connection can be granted. Additionally, obstructive sleep apnea is not a medically unexplained chronic multi-symptom illness (MUCMI) (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or a diagnosed illness that warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B)(1). To the extent that the Veteran’s representative asserts that his respiratory symptoms, gastrointestinal symptoms, and sleep disturbance are signs and symptoms of undiagnosed illnesses or a MUCMI, the Board notes that each of these symptoms is associated with a clear diagnosis for which the Veteran has been service connected. Of particular relevance in this case, the competent and credible clinical evidence of record states that the Veteran’s sleep disturbance is a symptom of his service-connected depressive disorder and is not etiologically related to his obstructive sleep apnea. Accordingly, the Board concludes the opinion of the VA examiner and the evidence of record are more probative than the Veteran’s opinion as to the etiology of his obstructive sleep apnea because they are better supported by the evidence of record. For all the reasons set forth above, the Board finds the preponderance of the evidence is against finding service connection for the Veteran’s obstructive sleep apnea. In reaching the conclusion above, 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 claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the Veteran’s claim for entitlement to service connection for obstructive sleep apnea is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, Associate 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.