Citation Nr: 21007240 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-51 740 DATE: February 9, 2021 ORDER Service connection for sleep apnea is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The evidence of record is insufficient to establish that the Veteran’s sleep apnea is related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to November 1990 and from September 2008 to December 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the matter for medical examinations. After the examinations were provided, the Veteran’s claim for service connection for an acquired psychiatric disorder was granted in July 2020, which is full relief for that claim. Accordingly, that issue is no longer before the Board. The Board will now adjudicate the claim for service connection for sleep apnea on the merits, and will address the claim for service connection for hypertension in the remand section below. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, for Persian Gulf Veterans, service connection may be granted where there is evidence of a chronic disability manifested by certain signs or symptoms 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 cannot be attributed to any known clinical diagnosis, as shown by history, physical examination, and laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a). 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. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). Here, the Veteran’s military personnel records establish him as a Persian Gulf Veteran. A qualifying chronic disability means a chronic disability resulting from either an undiagnosed illness or a medically chronic multisymptom illness defined by a cluster of signs or symptoms, which specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A medically unexplained chronic multisymptom illness means a diagnosed illness without 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). The Veteran contends that his obstructive sleep apnea is related to service because he began having sleeping problems during his first period of active duty service. Turning to the evidence, on an August 1991 service treatment record, the Veteran answered Yes to having trouble sleeping and reported insomnia. On a report of medical history from the same month he wrote, “I am not in good health. Hardly can sleep. Breathing problems.” An objective medical examination at that time found all the Veteran’s body systems in normal condition. On reports of medical history in May 1994 and April 199, the Veteran answered No to whether he was having trouble sleeping. At a December 2008 separation examination, the Veteran denied any problems. Following the Board’s prior remand, a VA opinion was provided in February 2020 that considered whether the Veteran’s sleep apnea is related to his service. After review of the Veteran’s medical history and claims file, the clinician found that the Veteran’s difficulty sleeping during his service was secondary to insomnia and was not evidence of having sleep apnea at that time. The Veteran’s insomnia was diagnosed in 2000, and he was started on medication for it. Hypersomnolence and waking up gasping, both symptoms of sleep apnea, did not begin until 2005, and sleep apnea was not diagnosed until 2013. Based on review of all the evidence, the Board finds that service connection for sleep apnea is not warranted. The most probative evidence of record is the February 2020 VA opinion, which based upon review of the Veteran’s entire file found that the Veteran’s reported in-service symptoms during his first active-duty period were connected to his insomnia rather than evidence of sleep apnea. In the examiner’s opinion, sleep apnea had a much later onset. The Board acknowledges the Veteran’s belief that his sleep apnea began during his first period of service but finds that the record does not establish the Veteran has education, training, or experience to opine on the etiology of his sleep apnea, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, as the most probative evidence of record fails to establish that the Veteran’s sleep apnea is related to his service, service connection for sleep apnea is not warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Board acknowledges the Veteran’s contention in his original September 2014 claim that service connection could be established for “an unspecified illness” given his status as a Gulf War Veteran. Here, a September 2015 VA examiner expressly stated that sleep apnea “is a diagnosable chronic multi-symptom illness with a partially explained etiology,” and under the regulations a “[c]hronic multisymptom illnesses of partially understood etiology... will not be considered medically unexplained.” 38 C.F.R. § 3.317(a)(2)(ii). Therefore, sleep apnea is not a qualifying chronic disability for which service connection may be presumed for a Persian Gulf Veteran. See 38 C.F.R. § 3.317(a). The Board also acknowledges the Veteran’s contention that his sleep apnea could be secondary to his service-connected depression. As previously mentioned, however, there is no evidence to support that the Veteran is competent to opine on the medical issue of the etiology of his sleep apnea, and there is no evidence elsewhere in the record to indicate that the Veteran’s sleep apnea could be secondary to depression. Thus, without competent evidence connecting the Veteran’s sleep apnea to his depression, service connection cannot be granted. 38 C.F.R. § 3.303. Likewise, without competent evidence indicating a secondary connection between sleep apnea and depression, VA did not have a duty to provide a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (requiring sufficient evidence to show an indication of etiology); see also 38 C.F.R. § 3.159(c)(4). Accordingly, without sufficient evidence of a link to service, service connection for sleep apnea is denied. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.317. REASONS FOR REMAND The Board’s prior July 2019 decision remanded for a new VA opinion regarding whether the Veteran’s hypertension was related to his service, with specific consideration of the Veteran’s report in August 1991 that he had high blood pressure. Though a new opinion was provided in February 2020, the clinician stated that “the Veteran did not have any evidence of hypertension in 1991.” Given that a Veteran’s own statement that he had high blood pressure is probative of hypertension within a year of separation from active duty, the Board must remand for a new opinion that considers this fact in rendering the etiology opinion. 38 C.F.R. § 3.309(a); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); Dalton v. Nicholson, 21 Vet. App. 23, 39, 40 (2007) (holding that a VA opinion is inadequate where it does not take into account a Veteran’s competent statements). The matter is REMANDED for the following action: 1. Associate with the Veteran’s claims file any VA treatment records not already of record (i.e., since August 2020). 2. Obtain an addendum opinion regarding the etiology of the Veteran’s hypertension. If possible, obtain the opinion from the clinician who authored the February 2020 opinion. The clinician must opine on all of the following: (a) Is the Veteran’s hypertension a medically unexplained chronic multisymptom illness without conclusive pathophysiology or etiology? (b) Is it at least as likely as not that the Veteran’s hypertension was incurred in any of his active-duty periods or began within a year after separation from any of his active-duty periods of service? Specifically consider and discuss that in August 1991 the Veteran stated that he had high blood pressure. (c) Is it at least as likely as not that the Veteran’s hypertension is related to any active-duty period of service? Consider the Veteran’s report in August 1991 that he had high blood pressure. (d) Is it at least as likely as not that the Veteran’s hypertension is proximately due to or aggravated (worsened beyond the natural course of the disease) by his service-connected major depressive disorder? 3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.