Citation Nr: 21021677 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-31 307 DATE: April 13, 2021 ORDER Service connection for obstructive sleep apnea is denied. REMANDED Service connection for a respiratory disability, to include sinusitis and rhinitis is remanded. FINDING OF FACT The Veteran’s sleep apnea did not have its onset in service, shortly after service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1966 to April 1969. His decorations include the Vietnam Service Medal with One Star. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. The Board remanded this claim for additional development in April 2019. Service Connection The Veteran seeks service connection for obstructive sleep apnea and sinusitis. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 U.S.C. §3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Obstructive Sleep Apnea The Board finds service connection for obstructive sleep apnea is not warranted. The Veteran has a diagnosis of obstructive sleep apnea (OSA). See September 2020 VA examination. The Veteran reports that his sleep apnea began in service and continued since that time. The Veteran was first diagnosed with obstructive sleep apnea in 2004. The Veteran reports that he first experienced trouble sleeping in Vietnam. See August 2018 Hr’g Tr. Military personnel records show the Veteran was stationed for part of his service in Okinawa. Service treatment records do not show any treatment in service for sleep apnea. At enlistment, the Veteran specifically highlighted that he did not have any trouble sleeping. See service treatment records. The Veteran’s separation examination does not contain any findings or endorsements regarding sleep issues. The September 2020 VA examiner concluded that the Veteran’s sleep apnea is not related to service, noting that the disability had its onset many years after service. The Board finds most probative the September 2020 VA examination because it is more consistent with the evidence of record indicating that the Veteran’s onset of his sleep apnea symptoms was many years after service. This is especially true in light of findings that the Veteran’s psychiatric disability is productive of sleep disturbances and the Veteran’s testimony that he began having sleep problems in service. See April 2019 Hr’g Tr. and July 2020 VA examination. The Board notes that following the April 2019 Board decision, the RO granted service connection for a psychiatric disability as secondary to pain for the Veteran’s service-connected disabilities. The psychological VA examination noted that the Veteran has sleep disturbances due to his psychiatric disability. The July 2020 VA examiner opined that although the Veteran has OSA, he stopped using his CPAP machine due to his sinus issues. As the Veteran has since lost weight and does not have much fatigue since that time, the VA examiner opined that it is less likely than not that the depression and anxious mood are related to the Veteran’s OSA. Still, the VA examiner noted that the Veteran experiences sleep disturbances as a symptom of his psychiatric disability. The Veteran’s lay statements indicate that he experienced psychiatric symptoms and difficulty sleeping since service. Because his psychiatric disability is productive of sleep disturbances, his statements are not inconsistent with the September 2020 VA examiner’s ultimate finding that his sleep apnea had its onset many years after service. This is because the Veteran’s symptoms address general onset of sleep disturbances (attributed to his psychiatric disability), while the VA examiner addresses the underlying etiology of his sleep disturbances as it relates to the onset of his specific OSA disability. As a result of these findings, while the Board finds that Veteran’s lay statements regarding difficulty sleeping are both competent and credible, the Board finds service connection for OSA must be denied. Sleep disturbances related to the Veteran’s OSA did not have its onset in service, his OSA disability did not have its onset in service, he did not have OSA symptoms shortly after service, and his OSA is not related to the circumstances of his service. As a result, service connection is not warranted. REASONS FOR REMAND The Veteran seeks service connection for a respiratory disability. Medical records indicate the Veteran experiences sinusitis. The most recent VA examination indicates that the Veteran also has a diagnosis of allergic and non-allergic rhinitis. See September 2020 VA examination. The September 2020 VA examiner indicated that the Veteran’s sinusitis is not related to service. However, this opinion did not include a discussion of whether the Veteran’s rhinitis is related to service. As a result, remand is warranted for an addendum opinion. These matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Issue an addendum opinion addressing whether the Veteran’s allergic and non-allergic rhinitis had its onset in or is otherwise related to service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ijitimehin, Kemi D. 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.