Citation Nr: 22014203 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-38 180 DATE: March 11, 2022 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is dismissed Entitlement to a disability rating in excess of 10 percent prior to November 1, 2019 for a cervical spine disability is dismissed. Entitlement to a disability rating in excess of 20 percent from November 1, 2019 to November 16, 2021 for a cervical spine disability is dismissed. Entitlement to a disability rating in excess of 30 percent from November 16, 2021 for a cervical spine disability is dismissed. Entitlement to a disability rating in excess of 10 percent prior to November 1, 2019 for intervertebral disc syndrome (IVDS) of the lumbosacral spine (lumbar spine disability) is dismissed. Entitlement to a disability rating in excess of 20 percent from November 1, 2019 to November 16, 2021 for a lumbar spine disability is dismissed. Entitlement to a disability rating in excess of 40 percent from November 16, 2021 for a lumbar spine disability is dismissed. Entitlement to a disability rating in excess of 0 percent prior to November 1, 2019 for left lower extremity radiculopathy (formerly peripheral neuropathy) (sciatic nerve) is dismissed. Entitlement to a disability rating in excess of 10 percent from November 1, 2019 to from November 16, 2021 for radiculopathy (formerly peripheral neuropathy), left lower extremity (sciatic nerve), is dismissed Entitlement to a disability rating in excess of 20 percent from November 16, 2021 for radiculopathy (formerly peripheral neuropathy), left lower extremity (sciatic nerve) is dismissed. FINDINGS OF FACT 1. Obstructive sleep apnea was not manifest in service and is not attributable to service. 2. Obstructive sleep apnea is unrelated, either by causation or aggravation, to a service-connected disease or injury. 3. In January 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran requests withdrawal of the rating issues listed above in the Order section. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Obstructive sleep apnea is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 3. The criteria for withdrawal of the rating issues listed above in the Order section by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to February 1973. The Veteran requested a Board hearing regarding sleep apnea in a VA Form 9 dated in, and received in, December 2018. In November 2021, the Veteran requested withdrawal of the hearing request. Therefore, no hearing is necessary for the issue of service connection for sleep apnea. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, air, or space service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Sleep apnea As the claim for service connection for sleep apnea was not listed in the December 2021 Supplemental Statement of the Case (SSOC) to which the January 2022 withdraw letter applied, the claim for service connection for sleep apnea remains on appeal. The Veteran's representative, on a December 2021 Appellant's Brief, states the Veteran's sleep apnea is due to military service and is secondary to diabetes, for which the Veteran is service connected. This is the same argument made by the Veteran on the December 2018 VA Form 9. VA treatment records show that the Veteran complained of distressful snoring and sleep disturbance in March 2017 and the Veteran underwent a sleep study in April 2017. Medical professionals found that the Veteran had obstructive sleep apnea after review of the sleep study. The Veteran filed a claim for sleep apnea in April 2017. A Statement in Support of Claim dated in April 2017 notes this was an ongoing issue for several years and the Veteran was unaware of it until his wife noted irregular sleeping and that he was constantly tired. An April 2017 statement from the Veteran's wife noted, for the last several years, that she witnessed bad snoring and the Veteran had sudden stopping of breathing while sleeping. The Veteran's December 2017 Notice of Disagreement states that the Veteran believes his sleep apnea is tied to his military service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has stated his belief that a service-connected disease or injury or service directly caused his sleep apnea. As the Veteran has not claimed to be a medical professional, statements to this effect in absence of lay observable symptoms or other lay observable evidence are not competent. The Veteran is not competent to report etiology in the absent of observable symptoms. While the Veteran believes diabetes caused sleep apnea, such an assertion regarding etiology, without any other supporting information, is not within the competency of a lay person. There is no evidence from a competent source of any type of a relationship between diabetes and obstructive sleep apnea. The Board has considered other theories. Service medical records are negative for sleep apnea or related issues. The Veteran denied a history of sleep issues (frequent trouble sleeping) on a December 1972 separation Report of Medical History. A Report of Medical Assessment at separation, also dated in December 1972, notes the Veteran had a normal clinical evaluation in all areas, except for the upper extremities, and there were no notations regarding sleep problems or apneas. Based on this affirmative evidence of the absence of symptoms, the most probative evidence of record is against a finding of sleep apnea symptoms in service. The Veteran's wife noted she witnessed sleep apnea relatively recently in the 2017 statement (the last couple of years), as opposed to sleep issues or apneas being problems stretching back many decades to the 1970 or 1960s. In the absence of lay observation, the Veteran's bare assertion of a relationship to service alone do not warrant service-connection on a direct basis. While the Veteran's apneas undoubtedly predated diagnosis, sleep apnea was not diagnosed until 2017, decades after service, and there are no statements, including from the Veteran, or other evidence suggesting in-service manifestation or occurrence of sleep apnea. In sum, there is no acceptable evidence of record of sleep apnea during service. There is no competent evidence that the onset of sleep apnea is otherwise related to service or as due to service-connected disease or injury. For the reasons expressed above, the evidence persuasively weighs against the claim of entitlement to service connection for sleep apnea and the claim must be denied. All Other Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran, via January 2022 letter, has withdrawn the appeal of the issues listed as withdrawn in the order section, after a receiving Supplemental Statement of the Case dated in December 2021 discussing those issues. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those issues and the appeal with regards to those issues is dismissed. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.