Citation Nr: 23004167 Decision Date: 01/24/23 Archive Date: 01/24/23 DOCKET NO. 16-10 015 DATE: January 24, 2023 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has had obstructive sleep apnea at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from March 1987 to June 1995; October 2003 to April 2005; and June 2005 to June 2007. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Muskogee, Oklahoma. In September 2018, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. As an initial matter, the Veteran is currently incarcerated, with a scheduled release date of November 2029. See Oklahoma Department of Corrections Report, dated September 2017. VA's duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, as those individuals are entitled to the same care and consideration given to non-incarcerated veterans. Wood v. Derwinski, 1 Vet. App. 190 (1991). The evidence of record establishes that the Veteran's confinement facility was unable to transport him to a local VA facility for a VA examination, and there is no evidence that the confinement facility has the capability to conduct a sleep study. See August 2022 correspondence with C&P provider and Lexington Correctional Facility, Lexington, Oklahoma. However, VA scheduled an examination with a medical professional to review the claims file and conduct an in-person examination at the correctional facility, as discussed below. Based on the peculiar circumstances of the Veteran's confinement, the Board finds that VA has satisfied its' duty to assist the Veteran in developing his claim. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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 at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). 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 obstructive sleep apnea The Veteran contends that he has obstructive sleep apnea that is related to his service. As noted above, 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this case, the Board concludes that service connection is not warranted for a sleep disorder, as the evidence of record shows that the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, the evidence of record shows that although the Veteran is diagnosed with sleep disturbances, that is a symptom of his posttraumatic stress disorder, for which he is already service connected and receiving a 50 percent disability rating. Concerning the question of whether the Veteran has current sleep disorder, the evidence of record includes a November 2022 VA examination. In this regard, the examiner conducted an in-person examination of the Veteran and reported that the Veteran did not have a diagnosis of obstructive sleep apnea, although a sleep study could not be conducted due to the Veteran's incarceration. With regard to the medical history of the Veteran's sleep disorder, the examiner reported that the Veteran reported sleep difficulties and snoring since service, and that there was evidence of sleep issues in VA treatment records, to include a referral for a sleep study. However, without an objective sleep study, the examiner concluded that a diagnosis of obstructive sleep apnea could not established. The evidence of record also includes VA treatment records. VA treatment records show that the Veteran reported snoring and difficulties with sleep. In September 2014, the Veteran complained of snoring, daytime fatigue, and tiredness. In October 2015, the Veteran was referred for a sleep study. However, the Veteran did not attend or complete a sleep study due to transportation issues. Additionally, the VA treatment records do not contain a sleep study or any diagnosis of obstructive sleep apnea, or any other sleep condition. The evidence of record also includes a November 2022 mental disorders VA examination that notes chronic sleep impairment as a symptom of the Veteran's service-connected PTSD. However, the Board notes that any diagnosis or treatment of obstructive sleep apnea, or any other diagnosed sleep disorder, is absent from these records. As such, based on a review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for sleep apnea. The Veteran has not been diagnosed with sleep apnea at any point during the appeal or any other type of physical respiratory condition manifesting in sleep problems. Concerning the sleep problems documented in the Veteran's medical records, the evidence shows that the Veteran's sleep difficulties are related his diagnosed PTSD, for which he is already service connected and receiving a 50 percent rating. The Board acknowledges the Veteran's contention that he has a current diagnosis of sleep apnea based on his reports of snoring. However, the Board notes that he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The preponderance of the evidence therefore demonstrates that the Veteran does not have sleep apnea, but instead has chronic sleep disturbances, a symptom that has been found to be part of his service-connected PTSD. The grant of service connection for PTSD encompasses a wide range of psychiatric symptoms, and the November 2022 VA psychiatric examiner specifically found that sleep impairment and sleep disturbance were symptoms of his PTSD. There is no evidence indicating that the Veteran has had any sleep disorder which is physical in nature or is related to something other than psychiatric impairment, and there is no evidence of any additional distinct symptomatology exists that is not encompassed by the Veteran's psychiatric disorder. See 38 C.F.R. § 4.14 ("The evaluation of the same disability under various diagnoses is to be avoided."); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). Thus, although symptoms for sleep disturbance are documented, in the absence of a separate, current disability or diagnosis of sleep apnea, there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225; see also Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009) ("multiple diagnoses or diagnoses that differ from the claimed condition do not necessarily represent wholly separate claims"). There is no competent and credible evidence of any sleep impairment symptomatology outside of the Veteran's psychiatric-related sleep symptoms for which separate service connection can be granted at any point during the claims period or shortly before the claim was filed. See McClain, 21 Vet. App. at 32; Romanowsky, 26 Vet. App. at 294. The Board finds that the Veteran's claim for a sleep disorder is symptomatology that is encompassed by the Veteran's already service-connected PTSD. (Continued on the next page) For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for obstructive sleep apnea is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.J. O'Connor, 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.