Citation Nr: 21063640 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-44 424 DATE: October 15, 2021 AORDER Accrued benefits for service connection for sleep apnea is denied. Accrued benefits for service connection for restless leg syndrome is denied. FINDINGS OF FACT 1. The Veteran's OSA did not manifest in-service and was not etiologically related to his service. 2. The Veteran's restless leg syndrome did not manifest in-service and was not etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits for service connection for sleep apnea have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 2. The criteria for entitlement to accrued benefits for service connection for restless leg syndrome have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1984 to January 2004. He died in late 2020. The appellant is his surviving spouse and she has been properly substituted as the appellant. This matter was before the Board of Veterans' Appeals (Board) in December 2018 when the issues were remanded for new VA medical opinions to determine the etiology of his sleep apnea and restless less syndrome. On remand, the Regional Office (RO) was instructed to provide the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to his claims. To that end, the RO was instructed to obtain any necessary authorization from the Veteran to obtain all outstanding records. On October 10, 2019, VA requested that the Veteran complete and return VA Form(s) 21-4142 and 21-4142a. He was notified that if a response was not received within 30 days of the request, then a decision may be made on his claims. The Veteran and his wife as appellant did not respond. In December 2019, VA addendum opinions were provided. However, a June 2020 deferred rating decision found that the December 2019 VA addendum opinions did not adequately respond to the December 2018 Board remand directives, and new addendum opinions were received in August 2021. In an August 2021 supplemental statement of the case, the claims for accrued benefits for service connection for sleep apnea and restless leg syndrome were denied. Given the above, the claims are properly before the Board. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: '(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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 1. Entitlement to accrued benefits for service connection for sleep apnea is denied. The appellant contends that the Veteran's sleep apnea began in service. Alternatively, she contends that it was caused or aggravated by his service-connected cerebral vascular stroke residuals (previously evaluated as Bell's Palsy) or his heart disease. For the following reasons, entitlement to accrued benefits for service connection for sleep apnea is not warranted, and the claim is denied. During a March 2014 private sleep study, the Veteran was diagnosed with obstructive sleep apnea (OSA). During the February 2004 report of medical history at service separation, the Veteran denied then having or ever having had frequent trouble sleeping. The Veteran's service treatment records show no treatment for sleep apnea. The appellant reported her observation that the Veteran had sleep apnea symptoms since service, and that they worsened in 2001, after his "mini-stroke." In a February 2015 VA medical opinion, the examiner opined that it was less likely than not that the Veteran's OSA was caused by his service-connected Bell's palsy or coronary artery disease. However, the opinion did not address possible aggravation. Additionally, the opinion was provided before the medical determination that Bell's Palsy was a misdiagnosis, and before the RO awarded service connection for the Veteran's stroke residuals in August 2016. Pursuant to the December 2018 Board remand, VA addendum opinions were provided in December 2019 and August 2021. Specifically, the examiner was asked whether the Veteran's OSA had onset in-service, otherwise related to his service, and/or whether his OSA was caused or aggravated beyond its natural progression by his service-connected residuals of cerebral vascular stroke or any other service-connected disabilities, to include his heart disease or his psychiatric disability. The examiner was asked to consider the Veteran's and appellant's reports of his snoring and that he stopped breathing during at night in-service, and the appellant's report that his symptoms worsened after his 2001 mini-stroke. In the December 2019 VA addendum opinion, the examiner opined that OSA was less likely as not incurred in or caused by the claimed in-service event, injury, or illness. The examiner stated that the Veteran's service treatment records do not support that he was diagnosed with OSA in-service and that his February 2004 report of medical history at service separation does not show a diagnosis of the condition. In the August 2021 VA addendum opinion, the examiner stated that the etiology of the Veteran's OSA was unknown and that the records do not provide an etiology of OSA. The examiner opined that it is less likely than not that the Veteran's OSA had its onset in-service. The examiner stated that there are no records showing that the Veteran complained or was treated for OSA while in-service or immediately after service separation. The examiner also opined that the condition was not caused or aggravated beyond its natural progression by his service-connected residuals of cerebral vascular stroke or any other service-connected disabilities, to include his heart disease or his psychiatric disability. The examiner stated that OSA occurs when the muscles in the back of the throat relax, and that these muscles support the soft palate, uvula, the tonsils, the side walls of the throat and the tongue. The examiner stated that when the muscles relax, the airway closes as one breathes in and the individual cannot get enough air, which can lower the oxygen level in blood. The examiner stated that the brain senses the inability to breathe and briefly rouses from sleep so that the airway can reopen. The examiner stated that there is no medical evidence or literature to support that Bell's palsy/cerebral vascular stroke, heart disease, or psychiatric disability causes OSA. There is no medical evidence establishing a nexus between the Veteran's reported in-service symptoms and his diagnosis of OSA. While the Veteran maintained, and appellant believe that his OSA is related to an in-service injury, event, or disease, as lay people, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau, 492 F.3d at 1377 n.4. The preponderance of the evidence is against awarding service connection for OSA. Even considering the statements made by the Veteran and appellant that he began experiencing symptoms of OSA in-service, the record indicates that he was not diagnosed with OSA until March 2014. Additionally, there is no probative evidence establishing a nexus, or link, between his OSA and his service. Without evidence of a nexus, the claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to accrued benefits for service connection for restless leg syndrome is denied. The appellant contends that the Veteran had restless leg syndrome symptoms while in-service and after his service. For the following reasons, entitlement to accrued benefits for service connection for restless leg syndrome is not warranted, and the claim is denied. During a March 2014 private sleep study, the Veteran was diagnosed with restless leg syndrome. The February 2004 report of medical history at service separation does not show any indication of any symptoms of restless leg syndrome. The Veteran's service treatment records show no treatment for restless leg syndrome. The Veteran reported that he had restless leg syndrome symptoms during and after service. The appellant reported that the Veteran's restless leg syndrome, and that he would kick his legs during his service. Pursuant to the December 2018 Board remand, VA addendum opinions were provided in December 2019 and August 2021. Specifically, the examiner was asked to opine as to whether the Veteran's restless leg syndrome had onset in-service, or is otherwise related to his service, and/or whether his restless leg syndrome was caused or aggravated beyond its natural progression by his service-connected residuals of cerebral vascular stroke or any other service-connected disabilities, to include his heart disease or his psychiatric disability. The examiner was asked to consider the Veteran's and appellant's reports of symptoms in-service. In the December 2019 VA addendum opinion, the examiner opined that the restless leg syndrome is less likely as not incurred in or caused by the claimed in-service event, injury, or illness. The examiner stated that the Veteran's service treatment records do not support that he was diagnosed with restless leg syndrome in-service and that his February 2004 report of medical history at service separation does not show a diagnosis of the condition. In the August 2021 VA addendum opinion, the examiner stated that even after review of Veteran's and spouse's statements, he was unable to provide an etiology of Veteran's restless leg syndrome without mere speculation. The examiner stated that restless leg syndrome is a condition that causes an uncontrollable urge to move the legs, usually because of an uncomfortable sensation, and that it typically happens in the evening or nighttime hours when seated or lying down. The examiner stated that moving eases the unpleasant feeling temporarily; however, often, there is no known cause for restless leg syndrome. The examiner noted that researchers suspect that the condition may be caused by an imbalance of the brain chemical dopamine, which sends messages to control muscle movement. The examiner stated that restless leg syndrome usually is not related to a serious underlying medical problem. However, it sometimes accompanies other conditions, such as peripheral neuropathy, iron deficiency, kidney failure, and spinal cord conditions. The examiner opined that it is less likely than not that the Veteran's restless leg syndrome had its onset in-service. The examiner noted that there is no evidence within available records showing that the Veteran complained or was treated for this condition in-service or immediately after service separation. The examiner also opined that the condition was not caused or aggravated beyond its natural progression by his service-connected residuals of cerebral vascular stroke or any other service-connected disabilities, to include his heart disease or his psychiatric disability. The examiner stated that there is no definitive medical literature available to support this theory of connection. Although the Veteran and the present appellant believe that the Veteran's restless leg syndrome is related to an in-service injury, event, or disease or to a service-connected disability, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence. The preponderance of the evidence is against the claim for service connection for restless leg syndrome. There is no medical evidence to suggest a link between the Veteran's restless leg syndrome and his active service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.