Citation Nr: 21076326 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-05 025 DATE: December 23, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for cerebral vascular accident disease with left side weakness is denied. Entitlement to service connection for dysarthria is denied. FINDINGS OF FACT 1. The Veterans sleep apnea was not shown during active service and is not related to active service. 2. The Veterans cerebral vascular accident disease with left side weakness is not a result of his military service nor secondary to his service connected unspecified depressive disorder. 3. The Veteran does not have a current diagnosis of dysarthria during the appeal period; to the extent that he did have a previous diagnosis of that condition, it is more likely than not related to his non-service-connected cerebral-vascular accident or dental/oral condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for cerebral vascular accident disease with left side weakness have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for dysarthria have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 1975 to July 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2019 for additional development, including treatment records and VA examinations. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for sleep apnea The Veteran is seeking service connection for sleep apnea. Initially, the Board notes that the Veteran has a current diagnosis of sleep apnea. However, after a detailed review of the evidence of record, the Board concludes that the preponderance of the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309, 3.317. In this case, the service treatment records are silent for complaints of, symptoms of, or a diagnosis of sleep apnea. While a June 1979 report of medical history indicates frequent trouble sleeping, no diagnosis of sleep apnea or other breathing related symptoms is indicated. Further, his June 1979 separation examination was normal. The Veterans post-service VA treatment records dated February 2014 indicates that the Veteran had been having trouble sleeping and that this condition was worsening. In a December 2016 VA medical record, the Veteran denies wearing a CPAP mask. Further, the medical evidence does not reflect treatment for or a diagnosis of sleep apnea until 2019, approximately 40 years since his separation from service. Therefore, continuity of symptoms has not been shown based on the clinical evidence. While the Veteran is competent to report that he experienced symptoms related to sleep apnea during and since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless insufficient by itself to support a relationship between his disorders and active service. As an initial matter, the large gap in treatment for his disorder weighs against the Veteran's claims. Next, although the Veteran is not competent to diagnose and provide etiological opinions related to the disorders on appeal, service connection may also be established if a relationship is demonstrated by competent evidence, including medical evidence and opinions. Here, the competent evidence fails to establish a relationship between active duty and the Veteran's current symptoms. In this regard, the Board places significant probative value on the opinions from the April 2021 and September 2021 VA examiners that performed a detailed review of the Veteran's service and medical treatment records and an in-person examination. Specifically, the April 2021 examiner opined that the Veterans obstructive sleep apnea (OSA) was less likely than not incurred in or caused by any in-service injury, event, or illness. In support of this opinion, the examiner stated that after the physical examination and review of records, it is less likely than not that the Veteran's obstructive sleep apnea manifested during active service or to any incident therein. The Veteran's enlistment, separation, and STRs are silent for any sleep impairments and while there was a STR medical record dated June 1979 for frequent difficulty sleeping, no mention of OSA was noted with the complaint. Further, the examiner stated that the Veterans OSA was not diagnosed until about 30 years after his separation. Therefore, it is less likely than not the veteran's OSA manifested in service or by events therein due to a lack of evidence. The September 2021 examiner also opined that the Veterans sleep apnea was less likely than not related to his military service as it was diagnosed 40 years after service in 2019, with no evidence of recurrence/ progression/ chronicity/residuals/sequelae of any service related condition. Lastly, as part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his sleep apnea and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. As discussed, these issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veterans statements, by themselves, are insufficient to establish service connection In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for sleep apnea and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 2. Entitlement to service connection for cerebral vascular accident disease with left side weakness The Veteran seeks service connection for a cerebral vascular accident (CVA). Specifically, he contends that his CVA is a result of "stress from being inactive duty training demoted and in-service drug addiction." Additionally, the Veteran asserts that is CVA is secondary to his service connected unspecified depressive disorder. Initially, the Board notes that the Veteran has a current diagnosis of CVA with residual mild left sided weakness. However, after a detailed review of the evidence of record, the Board concludes that the preponderance of the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309, 3.317. In this case, the Veterans service treatment records are silent for any central nervous system conditions. In fact, his June 1979 separation examination was normal. The Veterans post service medical treatment records indicate that the Veteran suffered a stroke in June 2007 which resulted in left sided weakness. The Board notes that the first indication of a CVA was not until 2007, approximately 28 years after separation from active duty service. Therefore, continuity of symptomatology is not shown by the evidence of record. While the Veteran is competent to report that he experienced symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless insufficient by itself to support a relationship between his disorder and active service. As an initial matter, the large gap in treatment for his disorder weighs against the Veteran's claims. The Board does recognize the Veteran's assertion that his CVA was the result of a drug addiction which first manifested during active service. Generally speaking, where drugs are used to experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct and not subject to service connection. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, organic diseases and disabilities that are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered to have willful misconduct origin. However, a review of the Veteran's service treatment records do not reveal any evidence of willful or addictive drug use during service. His separation examination included no notation of drug abuse or any drug-related issues. His available personnel records do not document drug use and his separation from active service was under honorable conditions. Further, there is no medical evidence of record indicating drug use during or within any significant period of time after separation from service. While his CVA was noted to be cocaine-induced in 2007, that occurred 28 years after separation from service. As such, given the timing of the creation of the Veteran's assertions, the lack of corroborating medical or lay evidence, and the Veteran's own self-interest in the outcome of the appeal, the Board does not find the Veteran's lay assertion of a significant drug addition during active service to be credible for purposes of adjudicating this appeal. See Caluza v. Brown, 7 Vet. App. 498 (1995). Although the Veteran is not competent to diagnose and provide etiological opinions related to the disorders on appeal, service connection may also be established if a relationship is demonstrated by competent evidence, including medical evidence and opinions. Here, the competent evidence fails to establish a relationship between active duty and the Veteran's current CVA. In this regard, the Board places significant probative value on the opinions from the January 2020, April 2021, and September 2021 VA examiners that performed a detailed review of the Veteran's service and medical treatment records and an in-person examination. Specifically, the January 2020 VA examiner opined that the Veterans CVA was less likely than not related to his in-service injury, event, or illness. In support of this opinion, the examiner stated that the Veteran experienced a CVA in May 2007 with residual left sided weakness that was neither caused nor incurred in service. The April 2021 VA examiner opined that the Veterans CVA was less likely than not related to his military service. In support of this opinion, the examiner stated that there is no evidence present of a stroke upon enlistment or separation and the Veteran had a cocaine-related stroke in 2007, which is over 25 years after his separation from the Army. Therefore, it was less likely than not from service. The April 2021 VA examiner also opined that the Veterans CVA was less likely than not proximately due to his service-connected unspecified depressive disorder. The examiner stated that there is no relevant evidence that would support that the CVA was aggravated by his service-connected unspecified depressive disorder as the Veteran served in the Army from July 1975 to July 1979, but his stroke did not occur until 2007. Additionally, the examiner stated that in May 2020, the Veteran admitted that he was self-medicating his psychiatric disability, which was not diagnosed prior to his entry. Further, the examiner stated that there is no anatomical/pathophysiological/hormonal/neuronal/pharmacological correlation to causation to create a nexus. Therefore, it is the examiners opinion, that it is less likely than not the CVA is proximately due to his service-connected psychiatric disability. Finally, the September 2021 VA examiner opined that the Veterans CVA was less likely than not from service or a result of his service connected unspecified depressive disorder. In support of his opinion, the examiner noted that the Veterans acute CVA occurred 28 years after leaving service and there are two main causes of stroke: a blocked artery (ischemic stroke) or leaking or bursting of a blood vessel (hemorrhagic stroke). Although, the examiner noted that cocaine was positive on urine tox screen, the Veterans blood pressure was noted to be 157/94 indicating not cocaine. Therefore, the examiner found no evidence of any aggravation beyond natural progression. Moreover, as noted above, the Board is unable to accept the Veteran's statements of CVA in service without other supporting evidence. Lastly, as part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his CVA and active service. While he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. As discussed, these issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veterans statements, by themselves, are insufficient to establish service connection. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for CVA with left sided weakness and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for dysarthria The Veteran is seeking service connection for dysarthria. The Veteran's service treatment records are silent for any complaints of, diagnoses of, or treatment for speech problems, and his separation examination noted no diagnosis or complaints related to such. There is no evidence of record of any speech problem existing prior to the year 2007. Specifically, a May 2007 medical record reveals a diagnosis of mild dysarthria with language skills still intact. The Veteran was afforded a VA examination in January 2020 and February 2021. Both examiners found that the Veteran did not have a diagnosis of dysarthria. The February 2021 VA examiner stated that after the physical examination and review of records, it is his opinion that the Veteran does not have a current diagnosis of dysarthria because the condition has resolved. In support of his opinion, the examiner noted that no dysarthria was recorded in May 2007 and "mild dysarthria" was reported in June 2007, however, no evidence of dysarthria was reported in October 2007. Further, the examiner stated that if the Veteran did have a speech issue, it is likely due to an oral or dental condition. In short, the Veteran does not have a present diagnosis of dysarthria, and if he did have it previously (although not during the appeal period) it was more likely related to his non-service connected stroke or a non-service connected dental/oral condition. The Board finds this evidence to be probative. The opinion was given by a medical specialist in contemplation of the complete medical record and applies the facts of this case to known medical principles. The Board has searched the record but found no medical evidence or opinions to contradict the opinion of the February 2021 VA examiner. The Board does recognize the Veteran's firmly held belief that his dysarthria is related to service but finds this of limited probative value. As noted above, while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his asserted dysarthria, especially in light of the VA examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate a present diagnosis of that disability, or that it is related to any incident of service or a service-connected disability. See id. In sum, the evidence shows no speech problems prior to 2007, nor any present diagnosis of dysarthria during the appeal period. Further, the weight of the evidence shows no relationship between the claimed condition, if it exists, and active service. To the extent that dysarthria is implied as a symptom of either his 2007 CVA or a dental/oral condition, those disabilities are not service connected and therefore service connection on a secondary basis is also not for consideration. As such, service connection for dysarthria is denied. 38 C.F.R. §§ 3.303, 3.309, 3.310. The evidence preponderates against the claim, and there is no doubt to resolve. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.