Citation Nr: 22018169 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-58 618 DATE: March 28, 2022 THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral lower extremity restless leg syndrome, to include as secondary to service-connected PTSD. ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is denied. Entitlement to service connection for bilateral lower extremity restless leg syndrome, to include as secondary to service-connected PTSD, is denied. FINDINGS OF FACT 1. Sleep apnea is not shown to be causally related to an in-service injury or disease or to have been caused or aggravated by service-connected PTSD. 2. Bilateral lower extremity restless leg syndrome is not shown to be causally related to an in-service injury or disease or to have been caused or aggravated by service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 3.310. 2. The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1973 to September 1974. The Veteran died in July 2018, during the pendency of this appeal. The appellant, his surviving spouse, has been substituted as the appellant. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were last before the Board in April 2020 at which time they were remanded for further development. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." 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 injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38C.F.R. §3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38C.F.R. §3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38U.S.C. §1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is denied. The Veteran seeks service connection on a direct basis as having manifested in service, or on a secondary basis, as caused or aggravated by his service-connected PTSD. The Veteran was noted to have a diagnosis of obstructive sleep apnea based on a March 2011 sleep study. The Board notes that the Veteran's service treatment records are silent for any diagnosis or complaints of sleep apnea, including a report of medical history in August 1974 in which the Veteran denied any sleep or respiratory related conditions. The Veteran filed a claim for entitlement to an acquired psychiatric disability in July 2009, but made no mention of a sleep apnea disability in that filing. The Veteran submitted his initial claim for sleep apnea in December 2016. The RO denied the Veteran's claim for service connection in a March 2017 rating decision, and the Veteran submitted a timely notice of disagreement later that month and claimed that he believed that his sleep apnea was caused by the abuse and treatment he was subjected to while he was stationed in Germany. In his VA Form 9, the Veteran argued that sleep apnea was not recognized in the 1970s and that he did not know what was causing these symptoms until recently. The Veteran also indicated that he was told by VA medical providers that his sleep apnea was caused by his treatment in Germany. However, the Board notes that there is no evidence in the VA treatment records of such a statement. The Veteran died in July 2018. In order to determine the etiology of the Veteran's claimed sleep apnea condition, the Board remanded this matter in April 2020 to obtain a medical opinion. Such an opinion was provided in May 2020. The VA examiner opined that the Veteran's sleep apnea was not at least as likely as not incurred in or otherwise related to service. The examiner provided a detailed medical history of the Veteran and noted that there were no respiratory or sleep related complaints in service. The earliest date of diagnosis was noted to be March 2011 and the examiner noted that the Veteran was a smoker and obese. While the examiner acknowledged that the Veteran experienced a traumatic event in service, he ultimately found the sleep apnea was independent of the triggering events that ultimately caused the Veteran's PTSD. With regards to the theory of secondary entitlement, to include aggravation, the examiner similarly opined that the Veteran's PTSD did not at least as likely as not cause or aggravate his sleep apnea. While the examiner acknowledged that there was some association between sleep apnea and PTSD, he explained that there was no literature that supports PTSD is a causative factor in the development of sleep apnea. There is no evidence that the May 2020 examiner was either not competent or credible. Further, the May 2020 opinion was supported by well-reasoned rationales with citation to medical literature that discussed the mechanical causes for sleep apnea and whether the Veteran's service-connected PTSD could have caused or aggravated those processes. The examiner considered all the evidence of record, to include favorable medical opinion evidence and lay statements. As such, the Board finds that the May 2020 opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the convincing weight of the evidence is against a finding that the Veteran's diagnosed sleep apnea was either incurred in or caused by his active service, or was caused or aggravated by his service-connected PTSD. In making this determination, the Board finds the May 2020 VA opinion to be the only probative, competent medical opinion of record regarding the etiology of the Veteran's sleep apnea. The May 2020 opinion provided a fully articulated conclusion adequately supported by medical rationale and citations to the Veteran's claims file and medical history. For these reasons, the Board finds the opinion to be the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran's sleep apnea was incurred in, or otherwise related to, any in-service event, including his service-connected PTSD. Finally, the Board acknowledges the Veteran's sincere belief that his sleep apnea should be service connected. The Veteran is competent to report on matters observed or within his personal knowledge, and is therefore competent to make statements regarding his symptoms and medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a disorder such as sleep apnea requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether his sleep apnea was incurred in or caused by his military service or whether it is secondary to his service-connected PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Accordingly, the Board finds that the convincing weight of the evidence weighs against a finding that the Veteran's sleep apnea is causally related to his service or was caused or aggravated by his service-connected PTSD. Since the convincing weight of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38U.S.C. §5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38C.F.R. §3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for bilateral lower extremity restless leg syndrome, to include as secondary to service-connected PTSD, is denied. The Veteran seeks service connection on a direct basis as having manifested in service, or on a secondary basis, as caused or aggravated by his service-connected PTSD. While the Veteran has also argued that his restless leg syndrome is related to his sleep apnea, as this decision has denied entitlement to that disability, the Board will not consider secondary service connection on that basis. The Veteran was noted to have a diagnosis of restless leg syndrome based on a March 2011 sleep study. The Board notes that the Veteran's service treatment records are silent for any diagnosis or complaints of restless leg syndrome, including a report of medical history in August 1974 in which the Veteran denied any sleep related conditions. The Veteran filed a claim for entitlement to an acquired psychiatric disability in July 2009, but made no mention of a restless leg syndrome disability in that filing. The Veteran submitted his initial claim for restless leg syndrome in December 2016. The RO denied the Veteran's claim for service connection in a March 2017 rating decision, and the Veteran submitted a timely notice of disagreement later that month and claimed that he believed that his restless leg syndrome was caused by the abuse and treatment he was subjected to while he was stationed in Germany. In his VA Form 9, the Veteran argued that restless leg syndrome was not recognized in the 1970s and that he did not know what was causing these symptoms until recently. The Veteran also indicated that he was told by VA medical providers that his v was caused by his treatment in Germany. However, the Board notes that there is no evidence in the VA treatment records of such a statement. The Veteran died in July 2018. In order to determine the etiology of the Veteran's claimed restless leg syndrome condition, the Board remanded this matter in April 2020 to obtain a medical opinion. Such an opinion was provided in May 2020. The VA examiner opined that the Veteran's restless leg syndrome was not at least as likely as not incurred in or otherwise related to service. The examiner provided a detailed medical history of the Veteran and noted that there were no restless leg syndrome related complaints in service. While the examiner acknowledged that the Veteran experienced a traumatic event in service, he ultimately found the restless leg syndrome was independent of the triggering events that ultimately caused the Veteran's PTSD. With regards to the theory of secondary entitlement, to include aggravation, the examiner similarly opined that the Veteran's PTSD did not at least as likely as not cause or aggravate his restless leg syndrome. While the examiner cited medical research and explained there was no literature that supports PTSD is a causative factor in the development or aggravation of restless leg syndrome. There is no evidence that the May 2020 examiner was either not competent or credible. Further, the May 2020 opinions were supported by well-reasoned rationales with citation to medical literature that discussed the mechanical causes for restless leg syndrome and whether the Veteran's service-connected PTSD could have caused or aggravated those processes. The examiner considered all the evidence of record, to include favorable medical opinion evidence and lay statements. As such, the Board finds that the May 2020 opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the convincing weight of the evidence is against a finding that the Veteran's diagnosed restless leg syndrome was either incurred in or caused by his active service, or was caused or aggravated by his service-connected PTSD. In making this determination, the Board finds the May 2020 VA opinion to be the only probative, competent medical opinion of record regarding the etiology of the Veteran's restless leg syndrome. The May 2020 opinion provided a fully articulated conclusion adequately supported by medical rationale and citations to the Veteran's claims file and medical history. For these reasons, the Board finds the opinion to be the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran's restless leg syndrome was incurred in, or otherwise related to, any in-service event, including his service-connected PTSD. Finally, the Board acknowledges the Veteran's and the appellant's sincere belief that the restless leg syndrome should be service connected. The Veteran is competent to report on matters observed or within his personal knowledge, and is therefore competent to make statements regarding his symptoms and medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a disorder such as restless leg syndrome requires the specialized training of a medical professional. In this case, as laypeople not shown to possess appropriate medical training and expertise, the Veteran and appellant are not competent to render a persuasive or competent medical opinion on whether his restless leg syndrome was incurred in or caused by his military service or whether it is secondary to his service-connected PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). (Continued on next page.) Accordingly, the Board finds that the convincing weight of the evidence weighs against a finding that the Veteran's restless leg syndrome is causally related to his service or was caused or aggravated by his service-connected PTSD. Since the convincing weight of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38U.S.C. §5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38C.F.R. §3.102. For these reasons, the claim is denied. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.