Citation Nr: 22008036 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-00 730 ATE: February 11, 2022 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of obstructive sleep apnea which had its onset during active duty service. 2. The competent evidence of record is against a finding of a current diagnosis of a TBI, or any residuals thereof for which service connection has not yet been awarded. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2001 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2021, the Veteran testified before a Veterans Law Judge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea. He asserts this disability first began during active duty service, and service connection is therefore warranted. The service treatment records are negative for any diagnosis of or treatment for sleep apnea. The Veteran contends, however, that he was told during service that he snored and occasionally ceased breathing during his sleep. He has submitted statements from friends and shipmates confirming his snoring during service. He also reported that during service, he would wake up exhausted, and occasionally experience a choking sensation that would awaken him. Furthermore, he asserted that a private sleep study immediately following service confirmed a diagnosis of obstructive sleep apnea. On VA examination in May 2011, less than one year after he separated from service, a diagnosis of moderate obstructive sleep apnea was rendered by a VA physician. Affording the Veteran the benefit of the doubt pursuant to 38 U.S.C. § 5107, the Board finds service connection for obstructive sleep apnea is warranted. He has a current diagnosis, verified by a VA physician, of the claimed disability. Moreover, this diagnosis was confirmed shortly after service separation, and the Veteran has reported onset of his symptoms during active duty service. Though a layperson, the Veteran is competent to report snoring and daytime drowsiness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He has reported such symptoms in the present case, and the Board finds his assertions credible. Thus, upon review of the totality of the record, the Board grants service connection for obstructive sleep apnea. 2. Entitlement to service connection for a TBI The Veteran seeks service connection for a TBI. He asserts he sustained several head injuries in service, and service connection for a TBI, or the residuals thereof, is thus warranted. Considering first the service treatment records, these indicate the Veteran reported at service entrance in 2001 a pre-service history of motor vehicle accident, with head injury and loss of consciousness, occurring approximately two years previously. During service, he was seen on at least four occasions, in November 2003, March 2004, and January 2005, for injuries following motorcycle accidents. The November 2003 treatment records indicate a hematoma of the right thigh, but do not indicate any head injuries or concussions. He denied loss of consciousness or dizziness. Vision and hearing were also within normal limits. According to the March 2004 records, he sustained injuries to his right shoulder and thigh, but no head or brain injuries were diagnosed at that time. He reported a questionable loss of consciousness and short-term memory loss related to the accident. A CT scan of the Veteran's head was negative, and neurological and sensory evaluation was within normal limits. The January and February 2005 treatment records reflect a sprain of the right wrist, but no concussion or other injuries to the head. On examination for service separation in June 2010, the Veteran was without any noted neurological, cranial, or psychiatric abnormalities. Post-service, the Veteran was afforded a VA examination in May 2011. The examiner noted the Veteran's history of multiple head injuries. These included a motor vehicle accident prior to service, which may have resulted in loss of consciousness, and multiple motorcycle accidents in service, as well as head trauma following a fall on ice. After physically examining the Veteran, the examiner stated the Veteran did not have findings which were "consistent with traumatic brain injury." The examiner did, however, find the Veteran had a current diagnosis of chronic headaches, which were likely related to service. The Board notes service connection for headaches has already been granted by VA. The examiner otherwise found the Veteran did not "suffer from any other specific neurologic problems." Likewise, the examiner opined the Veteran did not have a concurrent psychiatric diagnosis, and thus did not comment on any nexus with the in-service head injuries. After considering the totality of the record, the Board finds that the evidence is not in approximate balance, but persuasively establishes that the award of service connection for a TBI, or any residuals thereof, is not warranted. Specifically, the competent evidence of record establishes that the Veteran does not have a current diagnosis of the claimed disability. Upon VA examination in 2011, a VA physician both reviewed the claims file and personally examined the Veteran. Ultimately, that examiner concluded a current diagnosis of a TBI was not warranted. While the examiner did find a possible nexus between the Veteran's current migraine headaches and his in-service head injuries, service connection has already been granted for that disability. The Board further notes that the Veteran has been granted service connection for tinnitus, another symptom that he asserts is related to his head injuries in service. The Board acknowledges that if the evidence indicates there is no current disability, the question of whether the Veteran had a disability at the time the claim was filed, or at any point during the pendency of the claim, should be addressed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the present case, the remainder of the post-service record is likewise negative for a diagnosis of a TBI, or any other residuals thereof for which service connection has yet to be awarded. The Board has also considered Saunders v. Wilkie, [886 F.3d 1356 (Fed. Cir. 2018)], which held that symptoms such as pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. In the present case, however, the competent evidence is against a finding that any current symptom attributable to the Veteran's in-service head injuries and not yet service-connected results in such impairment. As such, the claim must be denied. The Veteran himself asserts he has a current diagnosis of a TBI resulting from in-service head injuries. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id. However, neurological disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the evidence is not in approximate balance and the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). Service connection for TBI, to include any residuals thereof, is denied. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.