Citation Nr: 21068713 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-31 458 DATE: November 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that OSA was incurred in or related to active service, and the Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness manifested. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.304, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2008 to February 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this issue in February 2019 for further development and there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran contends service connection is warranted for OSA because he was exposed to aircraft exhaust fumes and smoke. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that statute and regulation, service connection may 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 to a degree of 10 percent or more. The term Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi- symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under 38 C.F.R. § 3.317, a MUCMI 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. 38 C.F.R. § 3.317 (a)(2)(ii). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), CFS, fibromyalgia, and irritable bowel syndrome (IBS), there is a list of signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI that includes fatigue, gastrointestinal signs or symptoms, signs or symptoms involving the respiratory system, muscle pain, joint pain, and sleep disturbances. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The term objective indications of a qualifying chronic disability includes both signs, in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, his own assertions may serve as support for the presence of symptoms supportive of the claimed condition as part of a Gulf War Syndrome under 38 C.F.R. § 3.317. For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(2)(5). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran was diagnosed with OSA in 2015. Service treatment records indicate the Veteran reported deploying to Bahrain and the United Arab Emirates. Additionally, he submitted a statement from D.S., a former service-member who served with the Veteran, stating they were both deployed to Afghanistan at least twice. Service in Southwest Asia is conceded. A November 2019 VA examiner opined the Veteran's diagnosed OSA was less likely than not caused by active service. The examiner stated the Veteran's service treatment records did not show signs or symptoms of OSA and his diagnosis came approximately 3.5 years after discharge. The examiner stated male gender and obesity are significant risk factors for developing OSA. Importantly, the examiner referenced one medical study showing 63 percent of the participant diagnosed with OSA had a body mass index greater than 30. The 2019 VA examiner stated the Veteran, a male who had a body mass index of 30.3, was obese at the time of diagnosis. She also found no evidence supporting his contention and that exposure to fumes causes OSA. The examiner stated she found no evidence supporting chronicity of OSA since discharge. The Board affords the examiner's opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the Veteran's lay statements and history of symptom manifestation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There are no competent opinions to the contrary. Moreover, the Veteran's service treatment records show he denied health issues, including breathing and/or sleeping problems in February 2008, May 2008, July 2011, and after his deployment to Southwest Asia in September 2011. Such evidence belies the notion that OSA began while the Veteran was in service. The Board reviewed the Veteran and D.S.'s assertion that he had OSA related to service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran and D.S. are competent to report observable symptoms, but there is no indication that they are competent to etiologically link any such symptoms to a current diagnosis. Nothing in the record indicates that they received any special training or acquired any medical expertise evaluating complicated medical disabilities. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The medical evidence of record specifically addressing the matter is found to be the most persuasive. The Board has also considered whether other avenues of service connection are available on a direct and presumptive basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Board finds that OSA is not causally related to the Veteran's active service on a direct or presumptive basis. A causal relationship cannot be presumed based on the Veteran's service in the Southwest Asia theatre. 38 C.F.R. § 3.317. A November 2019 VA examination indicates OSA is a disease with a clear and specific etiology and diagnosis and does not meet the criteria for either an undiagnosed illness or medically unexplained chronic multi-symptom illness illnesses. (Continued on the next page) Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran has sleep apnea related to service or any incident of service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim for entitlement to service connection, that doctrine is not applicable here. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.