Citation Nr: 21007619 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-48 616 DATE: February 10, 2021 ORDER Entitlement to service connection for sleep disorder, including sleep apnea, is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s sleep disorder was not present in service or until many years thereafter, was not related to service, or to an incident of service origin and was not caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1978 to July 1981 and from June 1983 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2016 and October 2017 from the Department of Veterans (VA) Regional Office (RO). In November 2018 and August 2020, the Board remanded the Veteran’s claim for further development. The required development has been completed and the matter is properly before the Board at this time. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(1). The Service Connection Claim The Veteran contends that he has a sleep disorder that is related to active service. In order to establish service connection for a claimed disorder, the following must be shown: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for sleep disorder It is not in dispute that the Veteran has a current diagnosis of a sleep disorder. See Carolina Cardiology, Sleep & Obesity Center Results Review March 2020 (diagnosing the Veteran with, inter alia, Sleep Apnea, Other; unspecified Hypersomnia; Narcolepsy, without cataplexy; and unspecified Insomnia). Thus, the first element of a claim for service-connection, a current disability, has been met. The Veteran’s service treatment records (STR’s), however, do not contain complaints, treatment, or diagnosis for sleep disorder. The Veteran’s entrance examination does not contain complaints, treatment, or diagnosis of a sleep disorder. The Veteran’s post-service medical records do not reveal continuous ongoing medical treatment for a sleep disorder since service. The Board acknowledges the Veteran’s lay statements that he did not go to sick call while on active duty more than 30 years ago for any of his medical conditions because it was looked down upon. See March 2017 Notice of Disagreement. However, this statement alone does not provide a basis for which the Board can find that he had a sleeping disorder while in service or for the last 30 years. Specifically, the Veteran did not endorse “frequent trouble sleeping” in his June 1978 Report of Medical History while in service and there are no other records showing the Veteran had any problem with a sleeping disorder during his time in service. Additionally, the Board notes that the Veteran reported he has had problems with sleeping for the past 20 years. See VA Disability Benefits Questionnaire (DBQ) November 2020. However, the Veteran made this statement and was first diagnosed with a sleep disorder in 2020, which is over 30 years after leaving service. Thus, the best medical and lay evidence available in this case shows that the onset of a sleeping disorder began no earlier than 10 years after the Veteran left service. The record provides highly probative evidence against the claim that the Veteran’s current sleep disorder manifested itself while in service. Thus, the Veteran’s sleep disorder is not shown to be etiologically related to active service on a direct entitlement basis where there is no in-service incurrence of a sleep disorder. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Next, the Board considers the question of whether the Veteran’s current sleep disorder was either proximately caused by, or proximately aggravated by his service-connected disabilities. In this regard, the Veteran currently is service connected for bilateral pes planus and hallex valgus (foot condition), bilateral hearing loss and tinnitus. In November 2020 the Veteran was afforded a VA examination to assess his current sleep disorder. The examiner opined that the Veteran’s sleep disorder is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected conditions. In support, the examiner found that the Veteran reported problems falling asleep due to stress (job and family) and thinking about his past, as well as pain in his back, neck, and shoulder, which wakes him up at night. Importantly, the examiner noted that he did not give tinnitus, bilateral hearing loss or his foot disability as a reason for his sleep issues. In December 2019 the Veteran underwent a VA examination for his sleep disorder. Here the examiner opined that it was less likely than not (less than 50% probability) that the Veteran’s sleep disorder was incurred in or caused by the claimed in-service injury, event or illness. In support, the examiner reported that there was no evidence of Obstructive Sleep Apnea and no pathologic diagnosis for his sleep disorder. A detailed review of the Veteran’s remaining VA and private treatment records provide highly probative evidence against the claim that his service-connected injuries are the cause of his sleep disorder. Specifically, the Veteran has chiefly contended his nonservice-connected problems cause his sleep disorder, such as, stress from his job and family, thinking about his past, or from pain in his wrist, hand, back, neck and shoulder. See e.g., Jacksonville VAMC Notes from October 2016 (Veteran needs to use carpal tunnel brace for sleeping at night); January 2017 (Veteran reports that he cannot sleep due to pain in both shoulders and right hand); February 2017 (Veteran reported pain in cervical spine keeps him from sleeping at night); March 2017 (Veteran complained of not sleeping due to shoulders, right hand, back and neck pain); May 2017 (Veteran reported carpal tunnel brace started to cause him pain and unable to use at night for sleeping); October 2017 (Veteran reported he is tired all the time with difficulty falling asleep and staying asleep due to having a lot on his mind); Fayetteville Pulmonary Diagnostic Study Report from December 2019 (PHQ-9 score on at-home sleep study suggestive of severe depression with a history of depression). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board finds the December 2019 provides very little probative value and affords it little weight in the analysis of the Veteran’s claim because it does not discuss any of the Veteran’s statements of symptomatology and offers only conclusions without supporting data or the essential rationale for the opinion. See Nieves-Rodriguez, 22 Vet. App. at 301 (“[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)). However, the Board finds the November 2020 VA opinion the most probative evidence of record because it is provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by the evidence found in the record including the Veteran’s lay statements and controlling medical principles. Also, at this time, this opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that it is the most probative evidence of record. Lastly, the Board considered the statements made by the Veteran’s spouse reporting that the Veteran has a problem with his multi-faceted sleeping disorder. However, while the Veteran and his spouse are competent and credible to report on symptoms of his disorder, they are not competent, for evidence purposes, to opine on matters requiring medical knowledge such as determining the nature, etiology, and severity of a medical condition as complex as a sleep disorder. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Board finds the medical evidence of record to be highly probative as to the current nature, extent, and severity of the Veteran’s sleep disorder and its etiology. The VA and private treatment reports cited above, in conjunction with the November 2020 VA examination, were based on physical examinations and a review of the Veteran’s prior medical history and his statements and provide sufficient information to allow the Board to weigh the evidence against the claim. Therefore, although the Veteran’s competent and credible reports of symptoms have been considered and are probative, the preponderance of evidence shows that there were several factors contributing to the Veteran’s sleep disorder such as pain from his nonservice-connected injuries and depression. The Board attaches greater probative weight to the clinical findings and opinion of skilled, unbiased professionals as to which of those factors were most significant in causing the multiple diagnoses of the Veteran’s sleep disorder. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion against the Veteran’s claim. Significantly, there is no competent medical opinion of record linking the Veteran’s diagnosis of his sleep disorder to any of his service-connected disabilities. While it is clear that the Veteran clearly suffers from a sleep disorder currently, he has not established a link between his current disability and his active service more than 30 years ago, or any of his service-connected disabilities. In some cases, his own statements provide evidence against the claim. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for a sleep disorder, to include as secondary to his service-connected disabilities, that doctrine is not applicable in this case and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.