Citation Nr: 21025297 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-56 915 DATE: April 27, 2021 ORDER Entitlement to service connection for sleep apnea to include as due to service in Southwest Asia and secondary to a service-connected disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the currently diagnosed sleep apnea is related to the Veteran’s active duty service, to include any exposures during service in Southwest Asia, or that it was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38U.S.C. §§1110, 1131, 5107; 38C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to July 1984 and February 1986 to April 1993, to include service is Southwest Asia. In June 2020, the Veteran testified at a hearing before the undersigned. In September 2020, the Board remanded the issue for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 to a degree of 10 percent or more. 38 U.S.C. § 1117 ; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 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). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317 (a)(2)(C). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 32.317(a)(4). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for sleep apnea to include as due to service in Southwest Asia and secondary to a service-connected disability The Veteran contends that he has a current sleep apnea disability that is related to his military service, to include as due to service in Southwest Asia, or in the alternative is secondary to his service-connected irritable bowel disability or the in-service diagnosed deviated septum. The Veteran is currently service connected for irritable bowel syndrome and tympanosclerosis. The service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis related to sleep apnea. A review of the Veteran’s STRs shows that in July 1991, the Veteran was diagnosed with a deviated septum. A review of the Veteran’s VA treatment records reflects that in April 2015, the Veteran had experienced apnea symptoms and was diagnosed with suspected obstructive sleep apnea. A January 2016 sleep study diagnosed the Veteran with obstructive sleep apnea. An April 2015 Gulf War examination reflects the Veteran had no undiagnosed illnesses or diagnosed medically unexplained chronic multisymptom illnesses. An August 2016 VA compensation examination reflects the Veteran has no undiagnosed illness; diagnosable chronic multisymptom illness with partially explained etiology or any other mystery illness or disability pattern or diagnosed disease related to a specific exposure event experienced by the Veteran during service in Southwest Asia. During the Veteran’s June 2020 Board hearing, he testified that he was diagnosed with sleep apnea within one year of separation from service. The Veteran also stated that he was diagnosed with a deviated septum in service. In support of his claim, the Veteran submitted two medical articles showing a relationship between obstructive sleep apnea and irritable bowel syndrome, which the Veteran is service connected for. An additional medical journal article was submitted showing a relationship between obstructive sleep apnea and a deviated septum. A December 2020 VA sleep apnea examination reflects a diagnosis of obstructive sleep apnea with an onset of 2016. The Veteran uses a CPAP machine which he stated helped tremendously with his daytime somnolence and fatigue. The Veteran reported he was a retired corrections officer. The examiner opined it was as likely as not the Veteran’s obstructive sleep apnea was not caused by service, caused by a service-connected disability, or aggravated by a service-connected disability. The rationale provided was that the medical literature, including Harrison’s Principles of Internal Medicine, pages 1236-1239 does not support a connection between sleep apnea and any of the medical conditions in the Veteran’s medical record or his active service. The examiner stated sleep apnea was not secondary to the Veteran’s ear disability because obstructive sleep apnea and hearing loss are not medically related, are entirely separate entities, and a thorough review of the medical literature failed to demonstrate a causal relationship. As the December 2020 VA examiner did not provide an adequate rationale, discuss the medical articles submitted by the Veteran regarding the relationship between sleep apnea and irritable bowel syndrome, or address the Veteran’s lay statements, an addendum opinion was requested by the RO. In a February 2021 addendum opinion, the VA examiner stated the Veteran’s medical records, claims file, and the journal articles were reviewed. The examiner noted that while the Veteran has reported symptoms of sleep apnea were present during his first year of service, it is less likely than not the Veteran’s obstructive sleep apnea was caused by his service. The rationale was that there is no documentation in the medical record to support the Veteran’s claim. The examiner opined it is less likely than not the Veteran’s obstructive sleep apnea was caused or aggravated by the Veteran’s service-connected irritable bowel syndrome because the pathophysiology of obstructive sleep apnea is different from irritable bowel syndrome. Additionally, the examiner stated the medical literature, including Harrison’s Principles of Internal Medicine, pages 1236-1239 does not support a connection between sleep apnea and any of the medical conditions in the Veteran’s medical record or his active service. The examiner also stated the Veteran’s diagnosed deviated septum is non-contributory as well. The examiner went on to state that the articles on the relationship between sleep apnea and irritable bowel syndrome and deviated septum only show an “association” not a definitive causation between the conditions. Based on the above medical evidence, the Board finds that the Veteran’s diagnosed obstructive sleep apnea is not related to service, to include as due to an undiagnosed or a medically unexplained chronic multisymptom illness and is not secondary to a service-connected disability. There is no evidence the Veteran was treated for or diagnosed with sleep apnea during his military service or within one year of separation from service. The Veteran separated from service in 1993, however the first report of apnea symptoms did not occur until April 2015 and confirmed with a January 2016 sleep study. Additionally, presumptive service connection on the basis of a chronic condition is not available for sleep apnea because there is no evidence it manifested within one year after service. Given the Veteran’s history in Southwest Asia, the Board has also considered whether his symptoms are attributable to an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness for which presumptive service connection would apply. However, the April 2015 Gulf War and August 2016 VA examination clearly reflect that the Veteran does not have an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness Additionally, an August 2016 VA examination reflects the Veteran has no undiagnosed illness; diagnosable chronic multisymptom illness with partially explained etiology or any other mystery illness or disability pattern or diagnosed disease related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Veteran’s diagnosed sleep apnea has a disability pattern of a disease, with a clear and specific etiology and diagnosis and there is no competent medical evidence to contradict such a finding. Thus, the evidence precludes the application of presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. As for secondary service connection for sleep apnea, the evidence is against a finding that the Veteran’s sleep apnea was caused by or aggravated by a service-connected disability. The February 2021 VA examiner found that there is no medical evidence to support a nexus between the Veteran’s service-connected irritable bowel syndrome and sleep apnea. The examiner stated the pathophysiology of obstructive sleep apnea is different from irritable bowel syndrome, the medical literature, including Harrison’s Principles of Internal Medicine, pages 1236-1239 does not support a connection between sleep apnea and any of the medical conditions in the Veteran’s medical record or his active service, and the articles on the relationship between sleep apnea and irritable bowel syndrome and deviated septum only show an “association” not a definitive causation between the conditions. (Continued on the next page)   The Board has considered the Veteran’s lay statements and contentions that his sleep apnea is related to his military service and/or secondary to his service-connected irritable bowel syndrome disability and deviated septum. However, the medical evidence does no show that the Veteran has a sleep apnea disability that is related to service or a service-connected disability. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, diagnosing an acquired psychiatric disorder, as well as its etiology, these issues fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). As a layperson, the Veteran has not been shown to possess the medical expertise to offer an opinion on complex medical matters, to include the etiology of a condition. The claims file does not contain any medical records linking the Veteran's sleep apnea to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran's assertions. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 54-56; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.