Citation Nr: 21005181 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 18-35 244 DATE: January 29, 2021 ORDER Entitlement to service connection for a sleep disorder (obstructive sleep apnea) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s sleep disorder (obstructive sleep apnea) began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to July 1988. This matter comes come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In March 2015, the AOJ issued a rating decision that denied the Veteran’s claims for service connection for a sleep disorder. The Veteran timely disagreed in a June 2015 Notice of Disagreement (NOD) and perfected his appeal in a July 2018 VA Form 9. In July 2019, the Board issued a remand for the VA to provide a disability examination for the Veteran’s sleep disorder. In November, a VA disability examination was conducted. Later, in July 2020, the AOJ re-adjudicated the claim; the Veteran’s claim for service connection for a sleep disorder was denied. In August 2020, the Veteran’s case was returned to the Board. 1. Entitlement to service connection for obstructive sleep apnea. The Veteran contends his sleep disorder began during service. See January 2019 Appellate Brief at 2. The questions for the Board are whether there is sufficient evidence to find the Veteran’s sleep disorder is related to his service or secondary to any other service-connected disability. For the reasons discussed below, the Board concludes that the evidence does not support a grant of service connection on a direct or secondary basis. Entitlement to service connection requires a Veteran to provide evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). Also, a Veteran may establish service connection on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Or for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(b) Entitlement to service connection under 38 C.F.R. § 3.310(a) or (b) requires evidence of three elements: (1) evidence of a current disability that is not service-connected; (2) evidence of a service-connected disability; and, (3) evidence of nexus establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310. Lay evidence, such as a claimant’s statement, can be competent and sufficient to establish a diagnosis of a condition when (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing the symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). A lay person’s statement is competent if he or she has personal knowledge which is gained through the senses, to include what is heard, felt, seen, smelled, and tasted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the “benefit of the doubt” when the evidence is approximately balanced. Id. at 53. Beginning with the Veteran’s service, in his March 1965 entrance exam, he denied having frequent trouble sleeping. And while in service, he underwent periodic medical examinations that required he complete a “Report of Medical History”: it is a questionnaire that allows servicemembers to report medical conditions they currently have or have had. In the June 1968 Report of Medical History, he reported some conditions, like frequent headaches, but denied having sleep problems. See June 19, 1968, Report of Medical History. He did not report any conditions in the May 2, 1972 Report of Medical History. In the October 29, 1985 Report of Medical History, he reported frequent trouble sleeping. He also noted depression and anxiety. In the portion where he is supposed to describe his health, the Veteran noted “insomnia.” The doctor who reviewed those reports indicated the Veteran’s sleep problems are associated with anxiety. See October 29, 1985, Report of Medical History at 2. In the April 1988 Report of Medical History, the Veteran submitted at separation, the Veteran reported frequent trouble sleeping as well as depression, excessive worry, and nervousness. The doctor who reviewed the Veteran’s responses noted “nervousness, poor sleeping, worrier.” See April 30, 1998, Report of Medical History at 2. The clinical findings on his separation exam note some conditions, to include sinus problems, but do not note sleep problems. See April 20, 1988, Report of Medical Examination. The record reflects that, on November 13, 2003, the Veteran sought medical assistance for a medical condition not currently on appeal. During that visit, he completed a health questionnaire that asked the Veteran if he has sleep apnea; he checked “no.” He he had checked “yes” to at least one condition, which is not on appeal. See November 13, 2003, Annual Health Review. In November 2009, the Veteran underwent a home sleep study which was analyzed by a doctor that diagnosed the Veteran with obstructive sleep apnea syndrome, intrinsic sleep disorder (NOS)/dyssomnia. It does not discuss whether the Veteran’s diagnosis is related to his service. See December 2009 VA Medical Center (VAMC) record by B.F., DO. The record reflects that the Veteran underwent more sleep studies in January and July 2010, and October 2013. None of the examinations discuss whether the Veteran’s diagnosis is related to his service. The last sleep study of record was conducted by St. Vincent’s Fisher Hospital on June 19, 2014. The results were analyzed, and the Veteran was diagnosed with obstructive sleep apnea. See January 25, 2010, VAMC record by B.F., DO; July 26, 2010, Private Medical record by T.S., MD; October 26, 2013, Private Medical Record by A.M.L, MD; July 2, 2014, Private Medical Record by K.P.V., MD. In November 2019 the Veteran underwent a VA disability examination for his sleep disorder. He reported it started in 1985, based that on his wife’s observations; he reported that it was so severe, he had to sleep in a separate room. Then, in 1989, he sought care for sleep problems and a sleep study was conducted. He reported that the results were “undetermined.” He also stated he could not find a record of that study. See VA Disability Benefits Questionnaire (DBQ) at 2. He reported his sleep problems progressively worsened over the years. And around 1992, another sleep study was performed. Following that study, he was issued a continuous positive airway pressure (CPAP) machine. He still uses a CPAP machine. Id. The examiner noted the diagnosis of obstructive sleep apnea, with the earliest diagnosis in November 2009. Id. at 2, 3. Later in November, the examiner prepared a medical opinion that concluded the Veteran’s diagnosed obstructive sleep apnea is not related to his service. The examiner acknowledged the Veteran’s separation exam noted sleeping problems but concluded they had psychological origins. She explained that the doctor who evaluated the Veteran at the time indicated his sleep problems was related to psychological factors, like nervousness. So, she concluded the sleep problems reported at that are not related to his diagnosed obstructive sleep apnea. Then she emphasized his diagnosis of sleep apnea (in December 2009) occurred long after service. She indicated there is no other evidence of sleep problems or treatment for them following service, to relate his December 2009 diagnosis of obstructive sleep apnea to his service. See November 2019 VA Medical Opinion at 2. In January 2020, the Veteran submitted a statement wherein he asserts he had sleep problems during service and explains why he did not report them to service medical providers. He indicated that he was an officer, and as a result, treatment of mental issues during service would have been harmful to his military career. See January Statement. He reiterated that his sleep disorder progressively worsened to a severity that his spouse could not sleep in the same room with him. So, he went to the VA for assistance; that is when sleep studies were conducted. Id. Turning to the Veteran’s claim for disability compensation, the first question is whether the Veteran has established entitlement to service connection under 38 C.F.R. § 3.303, on a direct basis. The first issue is whether the Veteran has a current disability. The Veteran has been diagnosed with obstructive sleep apnea, most recently in the November 2019 VA disability examination. Thus, the record reflects a current sleep disorder. See November 2019 VA DBQ at 2. The next issue is whether the evidence supports an in-service incurrence or aggravation of a disease or injury. The Board finds the evidence weighs in favor of finding an in-service incurrence or sleep problems. The Board finds Veteran’s statements and observations of sleep problems during service, credible. The Veteran has first-hand knowledge of whether or not he was able to sleep at night while in service; thus, he is competent to report those observations. Layno, 6 Vet. App. at 469. Here, he reported he had problems sleeping during service, which have been consistent throughout the record. See November 2019 VA DBQ; January 2020 Statement. And his statements are corroborated by his service medical records. See October 29, 1985, and April 30, 1998, Reports of Medical History. So, the Board finds his statements credible and assigned them significant weight towards the presence of sleep problems during service. Also, the Veteran credibly explained why all of his sleep problems are not recorded in his service medical records. He indicated that, as an officer who is in charge of service-members, reporting mental problems would have adversely affected his career. See January 2020 Statement. The Veteran is competent and credible to report the types of activities that might have been harmful to his career in the military. So, the Board assigned limited record of sleep problems during service no probative weight. In this case, the Board finds the evidence is, at least, approximately balanced on the issue of an in-service incurrence of sleep problems. Although the Veteran’s statements describing the event do not provide much detail, it is some probative evidence towards its occurrence. And even though the Veteran claims he received medical care for the injury, he explained why records around the time of its occurrence would not be found. Thus, doubt was resolved in the Veteran’s favor. Gilbert, 1 Vet. App. at 54. The next issue is whether there is a nexus between the Veteran’s sleep problems during service and his current sleep disorder. The Board finds the evidence does not support a nexus. The Veteran’s lay statements that his sleep problems during service are related to his sleep disorder was assigned little to no probative weight. Although the Veteran’s statements and observations are competent to support an inservice injury, his statements are not competent to render an etiological link between an inservice injury and his diagnosed sleep apnea. Jandreau, 492 F.3d at 1377. This is because determining the cause of sleep apnea also requires interpreting diagnostic findings and weighing plausible causes of the disorder, which the Veteran is not qualified to do. Id. The examiner who prepared the November 2019 VA Medical Opinion is competent to render an etiological link between his sleep problems during service and his current sleep disorder; she concluded there is no nexus. Even though the examiner was not aware of the sleep problems the Veteran did not report while in service, she found those sleep problems are unrelated to his current sleep disorder. See November 2019 VA Medical Opinion at 2. Nor did the examiner dismiss his report of undergoing a sleep study conducted within a year after service. See VA DBQ at 2. The record reflects she acknowledged and considered his report about a 1989 sleep study. She also noted there was no conclusive determination that the Veteran had sleep apnea. Id. So, the Board finds she had sufficient knowledge of the relevant facts of his past medical history to render a nexus opinion. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2006). The examiner provided a reasoned explanation for her conclusion. The examiner indicated that even though he observed sleep problems during service, a medical examination conducted contemporaneous to that report concluded it had psychological origins. So, she concluded his sleep problems during service are unrelated to his current sleep disorder. Then she explained that records of his sleep problems associated with his sleep disorder began long after service. See November 2019 VA Medical Opinion at 2. The examiner’s explanation is sufficient for the Board to evaluate whether the data she relied on connects to her conclusion. Nievez-Rodriguez, 22 Vet. App. at 301. The Board notes the Veteran’s denial of having sleep apnea, in a November 2003 health questionnaire, supports the examiner’s conclusion. See November 13, 2003, Annual Health Review. Just as the Veteran is competent to report the presence of sleep problems—he is competent to report the absence of them. Considering he had reported having other conditions the Board finds it is likely he would have reported sleep problems as well. So, the Board finds his statement credible and assigned it significant probative weight towards the absence of continuous sleep problems since service. The Board recognizes the Veteran submitted additional lay evidence after the VA disability examination was conducted. See January 2020 Statement. But the Board finds the assertions in that statement would not have changed the outcome of the examiner’s conclusion. This is because the Veteran’s statement, associating his sleep problems with mental health issues, confirm the examiner’s conclusion that his sleep problems had psychological origins. The Board finds the evidence is not approximately balanced on the issue of a nexus. The Veteran’s claims of a nexus were of little probative value, which was outweighed by the more probative November 2019 VA medical opinion concluding there is no nexus. Thus, doubt could not be resolved in the Veteran’s favor. Gilbert, 1 Vet. App. at 54. Although the record reflects a diagnosed sleep disorder and sleep problems during service, the Veteran has not shown there is a nexus between them. As a result, the Veteran has not established entitlement to service connection under 38 C.F.R. § 3.303(a). Nor is the Veteran entitled to service connection under 38 C.F.R. § 3.303(b). This is because his diagnosed obstructive sleep apnea is not a chronic disability listed under 38 C.F.R. § 3.309(a). The next question is whether the Veteran has established entitlement to service connection under 38 C.F.R. § 3.310(a). The Board concludes he has not. The Veteran has not alleged any of his service-connected disabilities caused or aggravated his diagnosed sleep disorder. And since the record does not raise the inference that any of them did, the Board finds there is no evidence of entitlement to service connection on a secondary basis at this time. As a result, the Veteran has not established entitlement to service connection under 38 C.F.R. § 3.310(a) or (b). In sum, the Veteran has not established entitlement to service-connection under 38 C.F.R. §§ 3.303 or 3.310. Also, the Veteran has not raised any other issues nor have any other issues been reasonably raised by the record. Robinson v. Peake, 21 Vet. App. 545, 552-54 (2008) (holding the Board is not required to address issues unless specifically raised by the claimant or reasonably raised by the record). The Board regrets a more favorable decision could not be reached in the Veteran’s case. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.