Citation Nr: 21074201 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-18 838A DATE: December 14, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that 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. §§ 101, 1110, 1131, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1981 until his honorable discharge in February 1985, from February 2003 until his honorable discharge in June 2003, and from July 2010 until his honorable discharge in August 2011. He served in Iraq and had additional Active Duty for Training (ACDUTRA) and Inactive Duty Training (IDT) service while a member of the Army Reserves. He was awarded the Global War on Terrorism Service Medal and the Iraq Campaign Medal with a Campaign Star. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In November 2018, the Board reopened the claim and then remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain a VA examination on the nature and etiology of his sleep apnea, and for a Persian Gulf illness and an undiagnosed or medically unexplained chronic multi-symptom illness. The claim returned to the Board and was then again remanded in June 2020. Specifically, the Board directed the Regional Office to obtain outstanding VA treatment records, the missing January 2017 sleep study, and an addendum VA examination opinion. Service Connection Legal Criteria 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, 1131; 38 C.F.R. § 3.303(a). "Active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477 78 (1991). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, 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). Laypersons are competent to report objective non-medical indicators of illness. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). Military personnel records show the Veteran served in Southwest Asia for various periods in 2005; therefore, the Veteran is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders that include IBS and dyspepsia) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and 13) menstrual disorders. 38 C.F.R. § 3.317(b). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions outlined above are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, a claimant must establish the existence of a disability and a connection between the veteran's service and that disability. The Board notes that the Veteran's service personnel records and Form DD-214 reflect service in Iraq from 2010 to 2011. The Veteran asserts that his disabilities were caused by his Southwest Asia service. As such, the Board has also considered whether the Veteran's symptoms in connection with his claims are due to an "undiagnosed illness" stemming from his service in Southwest Asia. Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for obstructive sleep apnea. The Veteran asserts that he developed sleep problems and sleep apnea as a result of service. See August 2013 and December 2017 VA Claim for Compensation. He also reported that he had trouble sleeping when he returned from Iraq, that his wife and children told him he had changed, and that he was hearing voices and had flashbacks. See October 2018 Translation, Pg. 30. Direct Service Connection Although his first sleep study in January 2017 did not diagnose the Veteran with obstructive sleep apnea, the second study in August 2019 diagnosed him with mild obstructive sleep apnea. Based on the August 2019, the VA examiner found that he had a diagnosis of obstructive sleep apnea. See August 2019 VA Examination. As such, he has met the first element of service connection. Unfortunately, although the Veteran asserts that his sleep apnea is due to service, there is no medical or competent evidence of record that establishes that his sleep apnea began or was caused by service. While he is competent to describe his symptoms, he does not have the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his obstructive sleep apnea. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). VA obtained a post remand VA examination in August 2019 that found that the Veteran had mild obstructive sleep apnea which was less likely as not due to service because his sleep study in January 2017 was negative. This study took place five years after active service. The examiner concluded that his sleep problems in and after service up to January 2017 could not have been due to sleep apnea as he had a negative sleep study in January 2017. The Board remanded the claim so this study could be obtained. The Regional Office obtained the study and the Board now addresses the adequacy of this examination. Prior to the July 2017 sleep study, the Veteran was self-medicating with Prozac, crestor, and tramadol; however, he was not administered any sleep medicine for the study. The examination took place overnight. No cardiac abnormalities were found, there was a soft snoring volume, and there was no oxygen desaturation, no significant obstructive sleep apnea, no significant central sleep apnea, no significant upper airway resistance syndrome, and no significant periodic leg movement during sleep. The Veteran has a normal study with poor sleep efficiency. He was not diagnosed with sleep apnea, but it was recommended that his sleep hygiene be reviewed, his weight be managed, and he obtain regular exercise. See January 2017 Sleep Study. The August 2019 examiner relied on this examination in forming their conclusion that the Veteran's obstructive sleep apnea was not related to or caused by service. The Board finds that this study was adequate, and the Veteran has not asserted otherwise. The August 2019 examiner also addressed a letter from the Veteran's private physician from December 2016 which diagnosed him with sleep apnea despite him not having a sleep study at that point. The examiner further stated that a rationale and sleep study were absent from the letter. The Board finds that the private physician failed to provide a rationale for his opinion and that the January 2017 and August 2019 sleep study and examination are more probative evidence. Furthermore, the Veteran has complained of sleep problems in relation to PTSD, stating that he wakes up with nightmares, flashbacks, and racing thoughts. See February 2017 VA Treatment Records. He also reported that he did not have a normal sleep pattern, did not eat well, and suffered from PTSD symptoms. See February 2017 VA Treatment Records. The in-service and post-service sleep problems he referred to were reflective of a possible PTSD or anxiety diagnosis. He is currently diagnosed with a psychiatric disability and was awarded service-connection for an acquired psychiatric disorder. The Veteran's September 2021 VA examination for an acquired psychiatric disability discussed how his time in service caused a significant alteration in his sleep pattern and could have caused him to have transitional insomnia. His 2011 post employment assessment referenced sleep problems; however, the examiner attributed this to the constant stressors and restorative sleep deprivation which triggered the onset of depressive symptoms. As such, his claim is denied on a direct basis. Persian Gulf Presumption The Board notes that the Veteran's service personnel records and Form DD-214 reflect service in Iraq from 2010 to 2011. The Veteran asserts that his disabilities were caused by his Southwest Asia service. As such, the Board has also considered whether the Veteran's symptoms in connection with his claims are due to an "undiagnosed illness" stemming from his service in Southwest Asia. The August 2019 VA examiner stated that there was no direct etiologic relation between obstructive sleep apnea and previous exposure to environmental hazards from Southwest Asia. They further stated that "Obstructive sleep apnea is a disease with a clear and specific etiology and diagnosis that is less likely as not ... caused by or a result of specific exposure event experienced by the veteran during service in Southwest Asia or a manifestation of an undiagnosed or medically unexplained chronic multi-symptom illness." As a result, he is not entitled to a presumption for service connection because his sleep apnea did not occur due to exposure to toxins in Southwest Asia and it is not an undiagnosed illness. Additionally, as the Veteran's sleeping disorder has been diagnosed as obstructive sleep apnea, the presumptive service connection provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not for application. (Continued on the next page) Based on the foregoing, the Board finds the weight of the evidence demonstrates that obstructive sleep apnea had its onset after service, and is not etiologically related to an injury, disease, or event during service. Accordingly, the Board finds that the weight of the evidence is against direct service connection for a obstructive sleep apnea, and the claim must be denied. E. Choi Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.