Citation Nr: 22012177 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-41 418 DATE: March 2, 2022 ORDER Service connection for a sleep disorder, to include sleep apnea, secondary to service-connected occipital headaches is denied. VETERAN'S CONTENTIONS The Veteran contends that he has a sleep disorder secondary to his service-connected occipital headaches. FINDING OF FACT The Veteran's sleep disorder is not attributable to his active service or to any incident of service, to include as secondary to his service-connected occipital headaches. CONCLUSION OF LAW The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction was subsequently transferred to the RO in Columbia, South Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2018. The transcript of the hearing has been associated with the claims file. This matter was previously before the Board at which times it was remanded for further development. Entitlement to service connection for a sleep disorder, to include sleep apnea, secondary to service-connected occipital headaches Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). Here, in addressing the criteria of a current diagnosis, the Veteran was afforded VA sleep apnea examinations in March 2021 and August 2021, at which times the examiner confirmed a current diagnosis of REM sleep disorder. The Veteran's post-service VA medical records also document a current diagnosis of REM sleep disorder. See July 2019 Sepulveda VA Records. In addressing in-service incurrence, the Veteran's service treatment records (STRs) are void of any complaints or diagnosis of a sleep disorder. In addressing nexus, to the extent that the Veteran has stated that he has a sleep disorder attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his sleep disorder because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran is not competent to relate his current sleep disorder to his service, or to any incident therein, including his service-connected occipital headaches. The evidence of record otherwise includes a January 2020 VA opinion that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner also opined that the sleep condition had not been permanently worsened beyond normal progression (aggravated) by a service-connected disability. The examiner reasoned that the Veteran reported that his headaches began during service and his sleep problems began after his discharge. He stated that he was stressed after his graduation from college and worried about his ability to provide for his family. The Veteran reported that he has difficulties achieving restorative sleep 2-3 times a night due to his inability to maintain sleep and he wakes up several times a night. However, the examiner ultimately determined that there was no indication that the Veteran's sleep issues were associated with his headaches, or his military service. The Veteran denied that there was any link between his headaches and his sleep issues. In the March 2021 VA examination report, the examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner opined that it is more likely that the Veteran's occipital headaches were worsened by his REM sleep disorder. The examiner reasoned that the Veteran is claiming that his REM sleep disorder was caused by his headaches, however, according to research, sleep deprivation caused by REM sleep disorder precipitates headaches. In an August 2021 VA examination report, the VA examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner also opined that the sleep condition had not been permanently worsened beyond normal progression (aggravated) by a service-connected disability. The examiner reasoned that the Veteran's medical records and the remand were reviewed and considered and there was no patho-physiological correlation of occipital headaches and REM sleep disorder. In a January 2022 addendum, an examiner considered the Veteran's Board hearing testimony and opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner also opined that the sleep condition had not been permanently worsened beyond normal progression (aggravated) by a service-connected disability. The examiner reasoned that it would be mere speculation to determine that the Veteran sleep issues stem from his headaches due to his inconsistent reports. The Veteran has reported that his sleep issues started right after service due to his headaches. However, the Veteran denied sleep issues and reported he felt rested during treatment in 2011 and 2016. This is not consistent with his report of sleep issues beginning in and continuing since service. The examiner further reasoned that there are no records indicating sleep issues except the notes wherein he is applying for service connection; the Veteran applied for service connection for sleep apnea in 2013, which is over 40 years since his time in service and since the headaches began; and he has indicated that he has had some sleep issues related to his stroke. The examiner also referenced the Veteran's past reports regarding sleep issues beginning after discharge and graduation from college and anxiety related to his ability to provide for his family. The examiner concluded that the inconsistency of what caused the sleep issues and long-time frame lapsed from his reporting due to headaches supports the opinion that it is less likely than not that his sleep issues are due to or aggravated by his headaches. The Board finds the January 2020, March 2021, August 2021, and January 2022 VA examiner opinions to be highly probative. The opinions were based on a review of the claims file and relevant facts, and the examiner provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent opinion of record to the contrary. Without any competent evidence that the Veteran's sleep disorder is related to service, direct service connection is also not warranted. Therefore, the Board finds that the Veteran's sleep disorder was not caused or aggravated by the service-connected occipital headaches and did not have onset in service or within one year of his discharge from active service and are not otherwise related to a period of active service; therefore, service connection is not warranted. There is no doubt to be resolved in this case. 38 U.S.C. § 5107. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.