Citation Nr: 21020912 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-28 731 DATE: April 8, 2021 ORDER Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is denied. REMANDED Entitlement to service connection for a chronic multi-symptom disability under 38 C.F.R. § 3.317, to include symptoms of chronic fatigue, claimed as Gulf War Syndrome, is remanded. FINDING OF FACT The probative and competent evidence of record is against a finding that the Veteran’s sleep disorder, to include obstructive sleep apnea, is etiologically related to service. CONCLUSION OF LAW The criteria for a sleep disorder, to include obstructive sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1994 to June 2004, and from July 2005 to April 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing is of record. The Board remanded this matter in March 2018 and July 2020. Regarding the issue of service connection for a chronic multi-symptom disability under 38 C.F.R. § 3.317, to include symptoms of chronic fatigue, claimed as Gulf War Syndrome, the Board finds there has not been substantial compliance with the July 2020 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that her sleep disorder, including sleep apnea is related to service. Service treatment records show that in October 2003 on a post-deployment questionnaire, the Veteran responded “yes” to still feeling tired after sleeping. Service treatment records also show that in March 2006, the Veteran stated that she was exposed to various things (smoke from oil fires and burning trash/feces, vehicle exhaust, fuels, solvents and paints, radar/microwave, and sand/dust). In a post-service September 2010 VA treatment record, the Veteran was seen for a sleep consultation. She snored occasionally and was observed gasping. She had daytime sleepiness for 3 years. The physician’s plan included a sleep study. The Veteran was afforded Gulf War VA examinations in December 2011 and November 2015. The Board notes that both of these examinations were determined to be inadequate and no opinion was provided; therefore, the Board will not address these. In an August 2014 private treatment record, the Veteran was diagnosed with mild obstructive sleep apnea and a CPAP machine was recommended. At the November 2017 Board hearing, the Veteran testified that she was diagnosed with sleep apnea, but that she still had a sleep disorder diagnosis that was consistent with the multi-cluster symptoms under the Gulf War syndrome. She also stated that she had a lot of sleep deprivation in service. She said that when she was deployed “boots on the ground” was when a lot of her problems started. She said that she felt that it had something to do with the number of hours, stressful environment they were in, and lack of sleep. In a December 2020 disability benefits questionnaire (DBQ), a diagnosis of obstructive sleep apnea was noted. The Veteran reported that she was very “fatigued and sleepy” all day long and that she just wanted to sleep on return from her second tour in support of Iraqi Freedom in 2004. She said she had no energy. She said this worsened over the years and stated that she never felt rested. She described difficulty falling asleep at night and memory loss. In the daytime she could easily fall asleep and was “sleepy and moody.” The Veteran said that a sleep study was done in 2011-2012, and she was told she had obstructive sleep apnea. CPAP was issued, but she had difficulty keeping it on, and she was recently issued a newer device. The Veteran admitted that the times she was able to keep it on that she was not as tired and able to sleep better. In a separate December 2020 VA opinion, the examiner opined that the Veteran’s sleep disorder, to include sleep apnea, was less likely than not due to service. The examiner reasoned that the Veteran’s PDHA report in October 2003 acknowledged complaints of “still feeling tired after sleeping” along with chronic cough, runny nose, weakness, headaches. There were no records of persistence of the mentioned complaints. PDHA report and report of medical history in March 2006 were negative for sleep complaints and positive for hay fever symptoms. Pulmonology consult dated 2010 showed complaints of occasional snoring, daytime sleepiness, and positive weight gain of 50 pounds in 3 years. Provisional diagnosis was “suggestive of OSA;” however, no sleep study was done. The earliest record of sleep study was done in 2014, diagnosis mild obstructive sleep apnea. The examiner stated that with records reviewed, there was no direct evidence that the current diagnosis of sleep apnea began during active service or from exposures experience during active service. The examiner concluded that the Veteran’s weight gain, sinus issues (hay fever, URI) have a greater contribution to develop sleep apnea rather than reported sleep deprivation. Additional post-service treatment records do not provide any opinion or nexus between the Veteran’s sleep disorder, to include sleep apnea and service. The Veteran has indicated throughout the appeal that her sleep apnea is a result of her time in service. The Veteran is competent to report observable symptomatology of her condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through her own lay assertions, the Veteran is not competent to offer opinions as to the etiology of her sleep apnea. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Sleep apnea requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between her diagnosis and its relationship to her service. Aside from the Veteran’s contentions, the record does not include any evidence suggesting that the Veteran’s sleep apnea is related to service. Although the Veteran’s service treatment records show a complaint of feeling tired, there is no indication of a sleep disorder diagnosis in service. In fact, the Veteran was not diagnosed with sleep apnea until several years after separation from service. Thus, the preponderance of the evidence is against service connection for a sleep disorder, to include sleep apnea. Again, the probative evidence indicates the Veteran’s sleep apnea was not incurred in service and was not diagnosed until several years after service. Since the Veteran’s sleep apnea was not related to service, nor diagnosed within the first year after discharge, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53-56. REASONS FOR REMAND Entitlement to service connection for a chronic multisymptom disability under 38 C.F.R. § 3.317, to include symptoms of chronic fatigue, claimed as Gulf War Syndrome is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the July 2020 remand, a VA examination and opinion were obtained for the Veteran’s chronic multisymptom disability, to include symptoms of chronic fatigue. The Board directed that the VA examiner address the October 2003 service treatment record that noted the Veteran still felt tired after sleeping, and the March 2006 service treatment record that the Veteran was exposed to environmental toxins. The examiner was also directed to address the Veteran’s lay statements during the November 2017 Board hearing where she described constant sleep deprivation. In a December 2020 VA opinion, the examiner did not find a diagnosis of chronic fatigue syndrome. The examiner opined it was less likely as not that the disability pattern or diagnosed disease was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner said that the Veteran was service connected for multiple conditions which could explain her fatigue symptoms. The condition was not an unexplainable condition as the Veteran had multiple joint issues, sleep issues, and fibromyalgia symptoms, which could all contribute to her fatigue. Initially, the Board finds that the examiner did not consider or discuss the Veteran’s October 2003 or March 2006 service treatment records, as well as the Veteran’s lay statements of sleep deprivation in service. The Board finds this to be a Stegall violation. Additionally, the examiner did not provide any rationale as to why the Veteran’s condition is not related to her exposure to environmental toxins in service. Therefore, on remand, an additional VA opinion should be obtained that addresses the Veteran’s October 2003 and March 2006 service treatment records, and lay statements regarding sleep deprivation, as well as provide a rationale for the opinion that the Veteran’s condition was not caused by her exposure to environmental toxins. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from the December 2020 examiner, if available, or an appropriate substitute to determine the etiology of the Veteran’s chronic multisymptom disability under 38 C.F.R. § 3.317. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner should address whether the Veteran has symptoms that constitute an undiagnosed illness or medically unexplained chronic multi-symptom illness. (Continued on the next page)   A clear rationale must be provided for all opinions expressed. The examiner must address and discuss the October 2003 and March 2006 service treatment records that note feeling tired after sleeping and exposure to various environmental toxins, respectively, as well as the Veteran’s lay statements of sleep deprivation in service. The examiner must also provide a rationale for the December 2020 VA opinion that the Veteran’s symptoms were not due to environmental toxins. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.