Citation Nr: 21027900 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 12-27 504 DATE: May 7, 2021 ORDER Entitlement to service connection for a sleep disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's diagnosed sleep apnea began during his active service, is otherwise related to an in-service injury or disease, or is proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1981 to June 1985. In January 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in January 2014, November 2016, and November 2020. In relevant part, those remands directed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran's updated VA treatment records, to include March 2012 and September 2012 sleep studies, which were conducted at a private facility based on a referral from a VA treatment facility; ask the Veteran to identify any outstanding private treatment records; and provide the Veteran a VA examination as to his claimed sleep disorder. Pursuant to the remands, the AOJ obtained the Veteran's VA treatment records, including the March 2012 sleep study; sent the Veteran letters in October 2015 and November 2017 asking him to identify and authorize release of any outstanding private treatment records; provided the Veteran a VA examination as to his claimed sleep disorder in January 2016; and obtained addendum VA opinions in January 2021. The November 2017 letter to the Veteran specifically noted that the September 2012 sleep study could not be obtained, and asked him to authorize release of that study so that VA could obtain it directly from the private facility where it was conducted. The Veteran did not respond to either the October 2015 letter or the November 2017 letter. The January 2016 VA examination and January 2021 VA addendum opinions are responsive to the remand directives and provide the information required for a decision on the issue. Accordingly, the Board finds that VA at least substantially complied with the January 2014, November 2016, and November 2020 remands. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for a sleep disorder The Veteran seeks entitlement to service connection for a sleep disorder. He contends that he developed the sleeping disorder during service due to "the pressure of the stress" of active service, or that the sleeping disorder is secondary to his service-connected tuberculosis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Board concludes that, although the Veteran has a current diagnosis of sleep apnea, and evidence shows that he reported sleep disturbances during his active service, the preponderance of the evidence weighs against finding that the Veteran's diagnosed sleep apnea began during service; is otherwise related to an in-service injury, event, or disease; or was caused or aggravated by a service-connected disability. The service treatment records show that the Veteran endorsed frequent trouble sleeping on an April 1985 report of medical history for separation from active service. In early May 1985, he was admitted for inpatient mental health treatment after a suicide attempt. During that admission, he reported sleep difficulties, nightmares, difficulties falling asleep, restless sleep, and tiredness in the context of recently breaking up with a girlfriend, having difficulty with his job, and having problems with drugs. Later that month, a physician wrote a narrative report for the admission. The physician stated in that report, "At the time of this narrative, his sleep, appetite, drive, and desire are all essentially within normal limits". He diagnosed the Veteran with adjustment disorder with depressed mood, resolved, and attributed the Veteran's sleep difficulties to that mental health diagnosis. The service treatment records do not show that the Veteran was diagnosed with sleep apnea during his active service. The medical treatment records show the Veteran was first diagnosed with sleep apnea after undergoing a sleep study in March 2012, approximately 27 years after his separation from active service. Although the Veteran is competent and credible in his assertions that he had sleep difficulties during and since service, he is not considered competent to provide a diagnosis in this case, to determine that those symptoms were manifestations of sleep apnea, or to determine that his sleep apnea is secondary to a service-connected disability. The issue is medically complex, as it requires specialized training and knowledge to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, his assertions are not probative in showing that service connection on a direct or secondary basis is warranted. To make that determination, the Board instead turns to the competent medical evidence of record, which in this case consists of the January 2021 VA examiner's opinions. Regarding direct service connection, the January 2021 VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for that opinion, the examiner explained that the Veteran endorsed trouble sleeping at the time of his separation from active service, and that his trouble sleeping was attributed to leaving the service. Outside of that one instance, the medical record is silent for sleep apnea until 2012. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board accepts the examiner's opinion as probative evidence that the Veteran's current sleep apnea did not have its onset during his active service and is not etiologically related to the in-service complaints of sleep disturbances, as those were due to his mental health issues at the time. Regarding secondary service connection, the January 2021 VA examiner opined that the Veteran's sleep apnea was less likely than not proximately due to, the result of, or aggravated by his service-connected disabilities. As a rationale for that opinion, the examiner explained that common causes and risk factors for developing sleep apnea are excess weight, neck circumference, a narrowed airway, being male, being older, family history, use of alcohol, use of sedatives or tranquilizers, smoking, and nasal congestion. There is no current research showing that tinnitus, hearing loss, or tuberculosis, which are the Veteran's three currently service-connected disabilities, either cause or aggravate sleep apnea. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. The Board accepts the examiner's opinion as probative evidence that the Veteran's current sleep apnea was not caused or aggravated by his service-connected disabilities, as they are not known to cause or aggravate sleep apnea. The examiner provided a list of risk factors and known causes of sleep apnea. The Board acknowledges the Veteran's belief that his sleep apnea is related to an in-service injury, event, or disease, or is secondary to a service-connected disability. However, as discussed above, the Veteran is not considered competent to provide a nexus opinion regarding this issue because it is outside the competence of a lay witness who has not been shown to have the medical training or credentials to make such a determination. Jandreau, 492 F.3d 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, his statements are not probative and do not weigh against the January 2021 VA examiner's opinions. Finally, the Board notes that the Veteran's in-service reports of sleep difficulties were attributed to his mental health condition at that time and that the record shows that, during the pendency of the claim, the Veteran has reported sleep disturbances attributable to his current mental health conditions. However, the Veteran is not service connected for a mental health condition. In fact, a June 2012 rating decision denied the Veteran entitlement to service connection for mood disorder, claimed as depression and anxiety. The Veteran did not appeal that decision, and it became final. Because the Veteran has not been service connected for a mental health condition, he cannot be service connected for a sleep disorder or sleep disturbances as secondary to a mental health condition. In summary, the preponderance of the evidence is against finding that the Veteran's diagnosed sleep apnea began during his active service, is otherwise related to an in-service injury or disease, or is proximately due to or aggravated by a service-connected disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.