Citation Nr: 21030816 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-05 856A DATE: May 19, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to a compensable rating for tension headaches is remanded. Entitlement to service connection for a genitourinary disability, urethritis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 2004 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in February 2021. A transcript is of record. 1. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran seeks service connection for OSA. He contends that his OSA is related to sleep problems that have persisted since service. Alternatively, he asserts that it may be related to exposure to environmental hazards due to active service in Southwest Asia. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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 be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI refers to 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. 38 C.F.R. § 3.317(a)(2)(ii). A multisymptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is "medically unexplained," that is, the etiology and pathophysiology of the multisymptom illness, must be particular to the claimant's case. Id. at 291. Here, the Veteran had active service in Iraq from September 2006 to May 2007. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Service treatment records reflect complaints of sleeping difficulties during active service. In a report of medical assessment, the Veteran reported experiencing sleeping difficulties for which he did not seek medical care. Service treatment records are silent for clinical diagnosis or treatment of OSA. VA and private treatment records reflect assessment and treatment for OSA. In August 2011, the Veteran appeared for a private sleep study. Treatment providers noted mild elevation of the apnea hypopnea index, and found the study consistent with mild obstructive sleep apnea-hypopnea syndrome. The Veteran was given a Gulf War VA examination in March 2015. The Veteran reported having headaches and fatigue during service. The examiner noted that at the September 2009 separation health assessment, the Veteran reported that he had chest pains, headaches, and trouble sleeping. The Veteran had a sleep study in August 2011, which diagnosed mild OSA. The examiner diagnosed current OSA. A March 2015 VA examination shows the Veteran has a diagnosis of OSA. As the Veteran's OSA is a diagnosed condition, it cannot be considered an undiagnosed illness, but it is eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). A March 2015 VA examination indicates that the Veteran's OSA has a clear and specific etiology and diagnosis. As the Veteran has clear clinical diagnoses of OSA, which is a disease with a specific etiology, further consideration of the appeal as a "Gulf War illness" under 38 C.F.R. § 3.317 is not appropriate. The Board will still consider whether the Veteran's OSA disability is directly connected to his active duty. Thus, the question for the Board is whether the OSA began during service or is at least as likely as not related to an in-service injury, event, or disease, to include his sleeping difficulties during active service. The Board concludes that, while the Veteran has a current diagnosis of OSA, and evidence shows that he experienced sleeping difficulties during active service, the preponderance of the evidence weighs against finding that the OSA began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with OSA until August 2011, years after his separation from service. While the Veteran is competent to report having experienced symptoms of sleeping difficulties since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of OSA. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the March 2015 VA examiner opined that the Veteran's OSA is not at least as likely as not related to an in-service injury, event, or disease, including environmental exposures in Iraq or his sleeping difficulties during active service. The examiner explained that the Veteran diagnosed with mild OSA approximately 2 years after his separation, and there were no reports of snoring or apnea during the Veteran's military service. The examiner noted that headaches and insomnia, which the Veteran also experienced, can also cause fatigue. Therefore, the examiner concluded there was no clear evidence of sleep apnea until approximately 2 years after separation, and it was less likely than not the Veteran's OSA is related to a specific exposure event during service in Southwest Asia. 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 Veteran believes his OSA is related to an in-service injury, event, or disease. In a May 2014 statement, the Veteran reported that his sleeping habits have been terrible, and that he believed his sleep apnea has plagued him since 2007. A supporting April 2014 buddy statement from his girlfriend indicated that the Veteran has had trouble sleeping for as long as she has known him, and that the Veteran would randomly wake up at all times of the night. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2015 VA examination report. Accordingly, the preponderance of the evidence is against finding that the Veteran's OSA was incurred in service or is otherwise attributable to his service, to include his service in Southwest Asia. The Board has considered the applicability of the benefit of the doubt doctrine; however, it is not applicable. Service connection for OSA is not warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for tension headaches is remanded. In the February 2018 Form 9 appeal, the Veteran, through his representative, asserted that his tension headaches have worsened since last examined in March 2015. At his hearing, the Veteran confirmed that he felt his headaches have worsened since 2015. Considering this assertion, a new VA examination to assess the current nature and severity of this disability is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for a genitourinary disability, urethritis is remanded. The Veteran contends his current urethritis disability is related to urinary tract infections during active service. The Board notes that a complaint of urinary tract infection was reported in service. The Veteran underwent a VA examination in March 2015. The examiner provided an opinion concerning entitlement on a Gulf War presumptive basis; however, this opinion did not consider why service connection for the disability was not warranted on a direct basis. 38 C.F.R. § 4.2. Accordingly, remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tension headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran's urethritis, which was reportedly diagnosed in 2011, onset during his active service, or is otherwise related to his active service. The need for an in-person examination is left to the examiner's discretion. A rationale must be provided. In doing so, the examiner should consider the Veteran's report at the March 2015 VA examination that he experienced burning with urination during preparation exercises for his deployment to Iraq in 2006-2007, and that his wife got pyelonephritis at the same time, and the Veteran's description of his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.