Citation Nr: 21072032 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-37 299 DATE: December 2, 2021 ORDER Entitlement to service connection for a disability manifested by chest pain is denied. Entitlement to service connection for a sleep disorder, to include sleep apnea, is denied. REMANDED Entitlement to service connection for a bilateral eye disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had disability manifested by chest pain at any time during, or approximate to, the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea (OSA) began during active service or is otherwise related to an in-service injury or disease, including service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by chest pain are not met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for entitlement to service connection for a sleep disorder, to include sleep apnea have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.10, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2002 to July 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision. These matters were previously before the Board in November 2018 and June 2021. Service Connection A Disability Manifested By Chest Pain The Veteran seeks service connection for a condition manifested by chest pain. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, the Board concludes that, while the Veteran occasionally experiences chest pain, his chest pain is not a disabling condition and has not been such a condition at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Saunders v. Wilkie, 88 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Veteran complained of chest pain when running during a deployment on a post-deployment health questionnaire from December 2005. He did not seek further treatment at that time. At a June 2015 Compensation & Pension (C&P) examination, he indicated that he would feel left sided chest pain every time he ran at a high pace, but that he never sought treatment for this condition because he did not think of it. The pain was relieved with rest after a brief time. A cardiac examination, including an echocardiogram, revealed no abnormal findings and no cardiac condition was diagnosed. The Veteran was re-examined in October 2019. At that time, he indicated that he had experienced chest pains in service and that it would still sometimes happen when he was very physically active. No heart condition could be diagnosed, and no current symptoms were documented. The Veteran was re-examined at a July 2021 C&P examination, at which time he indicated that his condition had improved to the point where he had not experienced these symptoms except for one time nearly six months before the examination in question. A cardiac examination once again revealed no heart condition, and the examiner concluded that the Veteran's chest pain was likely musculoskeletal chest wall pain. Other than these examinations, the Veteran's medical records do not indicate he has complained of, or sought treatment for, chest pain. Based on these records, the Board finds that the Veteran does not have a disability manifested by chest pain. Although no specific diagnosis is required to obtain a VA disability, and pain causing functional loss in the absence of diagnosis, a disability for VA purposes refers to functional impairment of earning capacity. Saunders, 889 F.3d at 1367-68. Here, the record reflects that the Veteran, at most, has fleeting chest pains that resolve within a matter of minutes. Early in the appeal period, it appears that these pains were more common and have been becoming less so. However, there is no suggestion in the record that this condition has limited him in any significant way. Thus, it is not a disability as that term is defined in VA law. Id. As the existence of a disability is a requirement to obtain VA compensation, service connection for a disability manifested by chest pain is denied. The Board is mindful that this issue was previously remanded to determine if the Veteran's chest pain was a manifestation of a qualified chronic disability, either an undiagnosed illness or a medically unexplained chronic multisymptom illness associated with service in Southwest Asia. However, the July 2021 examiner concluded that the Veteran had neither an undiagnosed illness nor a medically unexplained chronic multisymptom illness, because he had no chronic condition at all, but simply an acute feeling of chest pain due to overexertion. Compensation for manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness is only service connectable under the relevant regulations if that condition manifests to a degree of 10 percent or more. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(1)(i). Here, the evidence is against a finding that his occasional chest pain has resulted in a chronic condition, nor has it risen to the level of functional impairment to meet the definition of a disability under relevant VA regulations. Service connection is also as a qualifying chronic condition related to service in Southwest Asia has not been shown. A Sleep Disorder, To Include Sleep Apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran seeks service connection for a sleep disorder, diagnosed as OSA. The question for the Board is whether he has a current disability that began in service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, the Board concludes that, while he has a current diagnosis of OSA and evidence shows that he complained of still being tired after sleeping while in service, the preponderance of the evidence weighs against finding that his OSA began in service or is otherwise related to an in service injury, event, or disease. At an October 2019 C&P examination, the Veteran reported that he began to experience symptoms of OSA in approximately 2010. However, he did not get evaluated for this condition, and a diagnosis of OSA was not rendered until the October 2019 C&P examination. While the Veteran is competent to report symptoms that he personally observes, he (being asleep) was not in a position to witness apneic events. At the October 2019 examination, he appears to be reporting the statements of a third person who told him that he was snoring and that his breathing would stop during his sleep. However, he is not competent to provide a diagnosis in this case or to determine that these symptoms, apparently related to him, were manifestations of OSA. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The October 2019 examiner opined, given the length of time between the Veteran's service and the lack of apnea complaints during or proximate to his service, that it was not at least as likely as not that his OSA was incurred in, or caused by, his service. However, the Veteran complained of feeling tired after sleeping in the December 2005 post-deployment health questionnaire, and an addendum opinion was sought to determine whether this was at least as likely as not an early manifestation of his OSA. The July 2021 examiner explained that the Veteran's OSA was attributable to his narrow oropharynx, which caused an upper airway obstruction, and explained that his complaint of tiredness after sleeping in 2005 is too general to be attributable to his OSA. The examiner noted that the Veteran also suffers from insomnia and that his complaints of tiredness after sleeping while deployed may have been due to the irregular working hours during deployment. This appears to be consistent with his reports about the onset of his symptoms in 2010. Accordingly, the Board finds that evidence of record is against a finding that the Veteran's OSA is at least as likely as not incurred during service or as a result of his service. Service connection is, thus, denied on the direct basis. Compensation is warranted for disability due to undiagnosed illnesses and medically unexplained chronic multisymptom illnesses that become manifest to a degree of 10 percent or more by December 31, 2026. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(1)(i). Here, the Veteran does not have an undiagnosed illness. Both the 2019 and 2021 examiners have diagnosed OSA. A medically unexplained chronic multisymptom illness is defined as a diagnosed illness without a 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, but specifically not including chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(2)(ii). Here, the Board finds that the evidence of record is against a finding that the Veteran has a medically unexplained chronic multisymptom illness, as the July 2021 examiner indicated that OSA was not such a condition and described the etiology and pathophysiology of the Veteran's OSA as stemming from his narrow oropharynx leading to an upper airway obstruction, resulting in OSA which is characterized by the recurrent functional collapse during sleep of the velopharyngeal and/or oropharyngeal airway, causing substantially reduced or complete cessation of airflow despite ongoing breathing efforts. Thus, the Board finds that service connection is not warranted under the regulations governing entitlement to service connection for qualifying chronic conditions related to Southwest Asia service. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In this regard, the question for the Board is whether the Veteran's OSA is proximately due to, the result of, or was aggravated beyond its natural progress by the Veteran's service-connected post-traumatic stress disorder (PTSD) with a history of a major depressive disorder and an alcohol use disorder. The Veteran does not report an aggravation of his OSA symptoms. In fact, he reported that his apnea had improved since it was diagnosed and treated beginning in 2019. Consequently, the only remaining question is whether the Veteran's OSA is at least as likely as not proximately due to his service-connected PTSD. In this regard, the Board concludes that, while he has OSA, the preponderance of the evidence is against finding that his OSA is proximately due to, or the result of, his service-connected PTSD. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The July 2021 C&P examiner opined that the Veteran's OSA is not proximately due to his service-connected psychiatric disability because the literature did not demonstrate a causal relationship between that psychiatric condition and OSA. Consequently, the Board finds that the preponderance of the evidence is against a finding that the Veteran's OSA is at least as likely as not proximately due to or aggravated by his service-connected PTSD, and service connection for OSA on a secondary basis is denied. REASONS FOR REMAND Service Connection For A Bilateral Eye Disorder An addendum opinion is required prior to rendering a final decision on the claim of entitlement to service connection for a bilateral eye disorder. The July 2021 VA opinion indicates that the Veteran's eye condition is not at least as likely as not incurred in, or caused by, his service, including service in Southwest Asia because the condition was not diagnosed until nearly 9 years after the end of his service. However, under the circumstances here, where VA regulations specifically contemplate that conditions related to service in Southwest Asia might manifest as late as December 31, 2026, the passage of time would be conclusive unless there is something about the particular disease process of the condition itself that militates against a nexus when such an amount of time has elapsed. Accordingly, this matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's dry eye condition diagnosed in June 2015 is at least as likely as not related to an in-service injury, event, or disease, including his service in Southwest Asia. A complete rationale should be provided. The clinician is advised that, while the passage of time may form a part of the rationale for a negative opinion, a complete rationale must rely on more than only the passage of time as a rationale. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue remaining on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.