Citation Nr: 21071635 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-41 961 DATE: December 1, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea did not have its onset during service, is not otherwise related to service, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 2005 to November 2014, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) from a December 2015 rating decision. In November 2018, the Board remanded the Veteran's claim to obtain private treatment records and to obtain a VA examination. The claim has since been returned to the Board for review. For the reasons indicated in the discussion below, the agency of original jurisdiction (AOJ) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show the existence of (1) 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, 1166-67 (Fed. Cir. 2004). 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Sleep Apnea The Board has reviewed the evidence of record and finds that service connection is not warranted for sleep apnea. In an appellate brief submitted in May 2018 the Veteran asserted that service connection is warranted for sleep apnea. He stated that he did not have sleep problems until service and that his sleep problems are due to service. Additionally, in an appellate brief submitted in October 2021, the Veteran asserted that his sleep apnea is due to his service-connected posttraumatic stress disorder (PTSD) and cited a medical study discussing an association between sleep apnea and PTSD. Further, he stated that he has also been instructed to seek follow up care regarding sleep issues, other than sleep apnea, but he has not yet completed this follow up care. The Board has considered the Veteran's lay statements regarding sleep apnea. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the diagnosis and etiology of sleep apnea. Jandreau v. Nicholson, 492 F.3d at 1377, n.4. Specifically, although the Veteran can provide competent testimony regarding symptoms, sleep apnea is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make, and it requires special testing. In any event, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. Jandreau v. Nicholson, at 1376-77. Thus, to the extent that the Veteran believes that his sleep condition is related to service or a service-connected disability, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. The Veteran's service treatment records (STRs) reflect reports of sleep disturbances. During the March 2003 entrance examination there were no indications of sleep apnea. In October 2013, the Veteran reported a chronic history of insomnia and sleep disturbances stating that he was experiencing difficulty falling and staying asleep as well as daytime fatigue. He also stated that he occasionally snores and that he previously took over-the-counter medication for sleep disturbances with no improvement. In November 2013, he reported experiencing sleep disturbances since returning from deployment. In January 2014, he reported difficulty staying asleep since 2007. In July 2014, he was documented as taking prescription and over-the-counter medication for sleep. Additionally, in February 2019, the Physical Evaluation Board determined that the Veteran was physically unfit to continue service due to a low back disability and left lower extremity radiculopathy; however, there were no indications of a diagnosis of sleep apnea. Regarding the Veteran's private treatment records, in October 2016 he underwent a sleep study. The private physician determined that a diagnosis of sleep apnea was not supported by the sleep study, which revealed normal results. Regarding the Veteran's VA treatment records, in August 2016, the Veteran was noted to have difficulty sleeping due to back pain. The records also indicate that he had symptoms compatible with sleep apnea, including snoring and gasping upon awakening. In September 2016, he was referred to undergo a study. In October 2016, he reported difficulty falling and staying asleep due to racing thoughts and inability to calm himself. In November 2016, the Veteran's psychiatric symptoms were listed as including trouble sleeping nearly every day. In a May 2017 VA examination regarding service-connected PTSD, the examiner determined that the Veteran's psychiatric symptoms included a chronic sleep impairment. In December 2018 he reported difficulty sleeping and that he awakened three to four times per night, and the records noted probable sleep apnea. In June 2020, he reported chronic sleep difficulties for many years. In July 2020, he reported improved sleep following a trial of a new sleep medication. In November 2020 and April 2021, he reported continued improved sleep and compliance with the new sleep medication. The Board finds that the Veteran's private and VA treatment records demonstrate that service connection is not warranted for sleep apnea. First, the private treatment records establish that the Veteran does not have a present diagnosis of sleep apnea. Second, although the VA treatment records document symptoms related to sleep apnea and a notation of probable sleep apnea, the records do not document a diagnosis of sleep apnea. Moreover, the VA treatment records document the reported sleep disturbance symptoms as part of the Veteran's psychiatric symptoms. Additionally, the Veteran's treating physicians do not provide a specific opinion regarding the etiology of his reported sleep disturbance symptoms and the physicians do not provide an opinion stating that his current sleep disturbance symptoms are caused by or related to service or a service-connected disability. Therefore, the Board finds that the VA and private treatment records do not support a finding of service connection as the evidence does not demonstrate a nexus relationship between the Veteran's claimed condition and service or a service-connected disability. In December 2019, the Veteran underwent a VA examination regarding sleep apnea. The Veteran reported that his disability started in 2006 when he was seen for insomnia and poor sleep causing him to awaken four to five times nightly. He stated that he underwent a private sleep study in approximately 2017, which revealed inconclusive results. He reported presently experiencing continued poor sleep and daytime fatigue. The examiner documented that the Veteran does not have a diagnosis of sleep apnea. The examiner stated that the likelihood of a Veteran having a diagnosis of sleep apnea is increased when the Veteran also a diagnosis of PTSD; however, the examiner concluded that as the results of the private sleep study were not associated with the claims file, an opinion could not be properly provided regarding direct service connection or secondary service connection due to PTSD. Following the receipt of the private treatment records documenting the October 2016 sleep study, which were associated with the claims file in January 2020, the Veteran underwent a second VA examination regarding sleep apnea in August 2021. The Veteran reported that his sleep difficulties started during service in approximately 2005 when he experienced insomnia, including difficulty staying asleep and daytime fatigue. He reported currently experiencing continued difficulty sleeping with daytime fatigue. He also stated that he was told to follow up with sleep medicine regarding a sleep issue other than sleep apnea but that he had not yet scheduled followup care. The examiner opined that it is less likely than not that Veteran's claimed condition was incurred in or caused by service or a service-connected disability. The examiner concluded that the Veteran does not have a diagnosis of any sleep disorder, including sleep apnea. In support of this conclusion, the examiner stated that the sleep study performed in 2016 was negative for sleep apnea. Further, the examiner stated that although the Veteran is documented as experiencing difficulty sleeping during service, a criterion of PTSD includes sleep disturbances, such as difficulty falling or staying asleep or restless sleep. Moreover, the examiner concluded that the Veteran's reported sleep disturbance is most likely a symptom of his service-connected PTSD and is not a separate or secondary condition. Therefore, the examiner determined that the evidence does not demonstrate a nexus relationship between a sleep disorder, including sleep apnea, and service or a service-connected disability. The Board finds the opinion of the August 2021 VA examiner to be of highly probative value in finding that service connection is not warranted for sleep apnea. First, the Board acknowledges the findings provided by the December 2019 VA examiner but as no etiological opinion was provided any documented findings are not of significant probative value. Next, the August 2021 VA examiner specifically reviewed the medical evidence of record, including the results of the October 2016 private sleep study, and determined that the Veteran does not have a diagnosis of any sleep disorder, specifically including sleep apnea. Second, the examiner determined that the Veteran's chronic sleep impairment is mostly likely a symptom of his service-connected PTSD and is not a separate or secondary condition. Therefore, the examiner concluded that the Veteran's claimed condition was not caused by service or a service-connected disability and provided a well-reasoned medical rationale in support of the conclusions. The Board finds that the objective medical evidence of record does not demonstrate that the Veteran has a current diagnosis of sleep apnea as required to establish a finding of service connection. Additionally, the Board finds that the objective medical evidence demonstrates that the Veteran's reported sleep disturbance symptoms are most likely caused by his service-connected PTSD and are not a separate or secondary condition. Therefore, the Board finds that the probative medical evidence of record does not support a finding of service connection for sleep apnea. Lastly, as noted above, in the October 2021 appellate brief, the Veteran referenced a medical study regarding the association between sleep apnea and PTSD. The Board finds that as the probative medical evidence of record demonstrates that the Veteran does not have a diagnosis of sleep apnea, further medical review of such evidence is not required. Thus, the Board finds the referenced medical study to be of little probative value regarding a finding of service connection for a sleep apnea. Continued on the next page Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for sleep apnea. Therefore, the appeal is denied. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.