Citation Nr: 21006291 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-46 303 DATE: February 3, 2021 ORDER Service connection for sleep apnea is denied. Service connection for a headache disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from January 1988 to January 1992, with additional periods of service in the National Guard between 1987 and November 2007. 2. Sleep apnea was not shown during service and is not causally or etiologically related to service. 3. The Veteran complained of headaches during service; the current headache disorder, diagnosed as tension headaches, is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 2. A headache disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Sleep Apnea The Veteran contends that sleep apnea is related to Gulf War illness; however, it is neither an undiagnosed illness nor an medically unexplained chronic multi symptom illness. Therefore, these theories of entitlement are not applicable and the claim will be analyzed on the basis of direct service connection. Turning to the medical evidence, a private sleep study reflects that the Veteran has been diagnosed with obstructive sleep apnea since November 2007. As such, a current diagnosis has been shown and the first element of service connection has been met. As to in-service incurrence, a May 2012 VA memorandum indicated a final finding of unavailability of the Veteran’s service treatment records (STRs). There is no available medical evidence to support the in-service incurrence of sleep apnea. As such, the Veteran’s lay testimony will be given additional probative weight. During an April 2017 Board hearing, the Veteran testified that exposure to burning oil wells, sand, dust, smoke, and experimental medication caused sleep apnea. As the STRs are unavailable, he is afforded the benefit of the doubt and the second element of service connection has been met. Further, even assuming the in-service incurrence of sleep apnea, the medical evidence does not support a medical nexus between a current disorder and service. A September 2020 VA examiner opined that sleep apnea was less likely than not caused by or a result of service. The examiner stated that the Veteran was diagnosed with sleep apnea in 2007, approximately 15 years after separation from active service. Further, she noted that the National Guard physical examinations were silent for sleep apnea. In addition, the examiner explained that sleep apnea was a common disorder which was due to the interaction between unfavorable anatomic upper airway susceptibility and sleep related changes in upper airway function. Although the Veteran contended that sleep apnea was due to the Gulf War, the examiner noted that there was a clear and specific etiology for the Veteran’s disorder. She concluded that sleep apnea was less likely than not caused by or due to service. Accordingly, the medical evidence does not support the appeal. Headache Disorder The Veteran contends that he has a headache disorder resulting from Gulf War illness; however, he has been diagnosed with tension headaches. As such, his headache disorder is not an undiagnosed illness and tension headaches are not a medically unexplained chronic multi symptom illness. Accordingly, the claim will be analyzed on the basis of direct service connection. Turning to the medical evidence, as noted above, the Veteran was diagnosed with tension headaches during an August 2012 VA examination. Therefore, a current disorder has been shown and the first element of service connection has been met. As to in-service incurrence, a formal finding of unavailability has been made for the Veteran’s STRs; therefore, his lay testimony of in-service events is given additional probative weight. During the April 2017 Board hearing, he testified that he began having headaches while on active duty but did not seek treatment until after separation from service. The Veteran is competent to claim that he experienced headaches during service. Layno v. Brown, 6 Vet. App. 465 (1994). As such, his claim that he experienced headaches in service is sufficient to establish an in-service incurrence and the second element of service connection has been met. As to the third element, the medical evidence does not support a nexus between headaches and service. A September 2020 VA examiner opined that a headache disorder was less likely than not caused by or a result of service. She explained that the Veteran’s National Guard records did not show a history of a headache disorder. Specifically, the September 1992 enlistment examination for the National Guard, shortly after separation from active service, was silent for a headache disorder. Further, the examiner considered the Veteran’s lay statements regarding the onset of headaches. She stated that the objective data did not support the onset of a chronic headache disorder during service. While he complained of headaches in 1997, these headaches may have been a symptom of something else, such as infection, dehydration, medications, or lack of sleep, rather than a chronic headache disorder. The examiner noted that the Veteran was not actually diagnosed with a headache disorder, diagnosed as tension headaches, until 2012. As such, the examiner concluded that there was no nexus between active duty and the current diagnosis of tension headaches. This evidence weighs against the claim and there is no contradictory medical evidence of record. As to both appeals, the Board has considered the Veteran’s lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.