Citation Nr: 21008037 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-02 933 DATE: February 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran’s sleep apnea was not incurred in, and is not otherwise related to, his active military service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1990 to October 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal previously was denied by the Board in January 2020. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, pursuant to a September 2020 Joint Motion for Remand (JMR), the Court vacated the Board’s September 2020 decision and remanded the claim for action consistent with the terms of the parties’ JMR. Entitlement to service connection for obstructive sleep apnea. The Veteran contends that his sleep apnea is related to his active military service. For the reasons that follow, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). The Veteran’s DD Form 214 shows that he received the Iraq Campaign Medal for his service in Southwest Asia. As such, the Veteran is considered a Persian Gulf War veteran. Turning to the evidence of record, there is no dispute that the Veteran has a current diagnosis of obstructive sleep apnea. As such, the first element of service connection has been established. The Veteran’s service treatment records (STR) show that he complained of problems sleeping or still feeling tired after sleeping on his September 2006 post-deployment assessment. A February 2009 STR shows that the Veteran was seen for complaints of a sleeping disorder. The Veteran reported that he was not sleeping more than usual. He stated that he would awake in the middle of the night most nights and would stay awake for an hour. It was noted that he did not have sleep apnea. A diagnosis of primary idiopathic insomnia was given, and Ambien was prescribed. A November 2010 STR shows that the Veteran reported waking up several times during the night and having trouble falling back asleep. It was noted that the Veteran had a long history of snoring and daytime sleepiness. Ambien was continued and a sleep study was ordered. The Veteran underwent a sleep study in December 2010. The sleep study indicated that the Veteran did not present with features of sleep apnea. It was noted that the Veteran had significant spontaneous arousals and it was suggested that hypnotic/anti-anxiety type medication be tried first and that if daytime fatigue had not resolved, other causes should be considered. A March 2011 STR shows that sleep hygiene was discussed with the Veteran and Ambien was continued. On his July 2011 Report of Medical History at retirement, the Veteran reported “yes” to “frequent trouble sleeping.” The examining physician noted insomnia. Post-service, the Veteran continued to be treated for insomnia. In May 2015, it was noted that he had chronic insomnia and restless sleep pattern. Another sleep study was ordered. The report of a May 2015 sleep study indicated that the Veteran had obstructive sleep apnea with moderately severe sleep fragmentation and minimal associated oxygen desaturations. Another July 2015 sleep study report noted findings consistent with sleep apnea. The Veteran initially underwent a VA examination in September 2011 for his sleep issues. At the examination, the Veteran reported having trouble sleeping for the past eight years. Specifically, he reported difficulty falling and staying asleep. The examiner noted that the December 2010 sleep study revealed that the Veteran did not sleep enough to achieve adequate REM sleep. The examiner provided a diagnosis of primary insomnia, which was granted service connection. In relation to the Veteran’s current claim for sleep apnea, a VA opinion was obtained in December 2015. The examiner opined that it was less likely than not that the Veteran’s sleep apnea was incurred in or caused by his active military service. The examiner noted that the Veteran had a sleep study done during service in December 2010, and that those results, including an apnea-hypopnea index (AHI) of 0.3, were not consistent with a diagnosis of obstructive sleep apnea. The examiner also noted that a January 2013 treatment record indicated that the Veteran had a diagnosis of insomnia that responded well to Lunesta. The examiner explained that there was no interval history of deviated nasal septum or other problem/risk factor for the development of obstructive sleep apnea while in service that could have led to the development of obstructive sleep apnea after service and that it was less likely that his sleep apnea condition developed due to his insomnia in service. The Board finds this opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his sleep apnea is related to his active service, including the complaints of fatigue and sleep problems, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran is considered a Persian Gulf War veteran, the Board finds that the provisions of 38 C.F.R. § 3.317 are inapplicable to this case. While the Veteran complained of fatigue and sleeping problems following his deployment to Iraq and Kuwait in September 2006, those symptoms have been attributed to his insomnia, which is already service connected. See STRs (attributing the Veteran’s in-service sleep issues to insomnia); December 2010 sleep study; September 2011 VA examination (attributing the Veteran’s sleep issues to his insomnia). Additionally, the Veteran’s current condition has been attributed to a known clinical diagnosis and therefore is not considered an undiagnosed illness. Furthermore, the Veteran’s sleep apnea is not a medically unexplained chronic multisymptom illness (MUCMI) as the competent evidence of record indicates that both the etiology and pathophysiology is at least partially understood. See Stewart v. Wilkie, 30 Vet. App. 383 (2018) (holding that an illness is not a MUCMI where both the etiology and pathophysiology are partially understood). Etiology refers to the cause of the condition while pathophysiology refers to the functional changes that accompany a particular syndrome or disease. Webster’s Third New International Dictionary of the English Language Unabridged 1655 (1966). Specifically, the December 2015 VA examiner indicated that the etiology of sleep apnea is at least partially understood as he indicated that sleep apnea develops as a result of a history of deviated nasal septum or other problems/risk factors. Additionally, sleep studies were used to confirm/rule out a diagnosis of sleep apnea based on changes/characteristics of the Veteran’s sleep, and the December 2015 VA examiner noted that an AHI of 0.3 is not consistent with a diagnosis of sleep apnea. Thus, the pathophysiology or functional changes that occur as a result of sleep apnea appear to be at least partially understood. As the Veteran’s current condition has been attributed to a known clinical diagnosis of conclusive pathophysiology and etiology, the law and regulations providing for presumptive service connection for Persian Gulf veterans with qualifying chronic diseases are not applicable. 38 C.F.R. § 3.317. To the extent the Veteran contends that he was misdiagnosed with insomnia in-service and actually had sleep apnea, the Board finds that the most competent and probative evidence indicates that he did not have sleep apnea in service and was properly diagnosed with insomnia. In this regard, as noted above, the provider who conducted the December 2010 sleep study found that the Veteran did not present with features of sleep apnea and diagnosed the Veteran with hypersomnia. The treating provider who saw the Veteran for his follow-up appointment appeared to agree with this diagnosis. See March 2011 STR. Moreover, the September 2011 VA examiner also indicated that the Veteran’s symptoms in service were consistent with insomnia. See September 2011 VA examination (reviewing the December 2010 sleep study and symptoms in service and providing a diagnosis of primary insomnia). Finally, the December 2015 VA examiner noted that the findings of the December 2010 sleep study were not consistent with sleep apnea. Thus, the competent evidence of record makes clear that the Veteran did not have sleep apnea in service. Again, while the Veteran may believe he had sleep apnea in service and was misdiagnosed with insomnia, he is not competent to provide such an opinion. Jandreau, 492 F.3d at 1377 n.4. In sum, the most competent and probative evidence of record weighs against a finding that the Veteran sleep apnea is related to his active military service or is a qualifying chronic disability as defined in 38 C.F.R. § 3.317. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.