Citation Nr: 18160499
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-03 846A
DATE:	December 26, 2018
ORDER
Entitlement to service connection for a sleep disorder to include obstructive sleep apnea is denied.
REMANDED ISSUES
Entitlement to an increased rating for post-traumatic stress disorder evaluated as 50 percent disabling is remanded.
Entitlement to an increased rating for residuals of a traumatic brain injury, evaluated as 40 percent disabling prior to January 1, 2017 is remanded.
Whether rating for residuals of a traumatic brain injury was properly merged with post-traumatic stress disorder to include whether that merger’s de facto reduction from a 40 percent rating to a noncompensable rate was appropriate is remanded.
FINDING OF FACT
The preponderance of the probative evidence is against finding that a sleep disorder to include sleep apnea is related to active service.
CONCLUSION OF LAW
A sleep disorder to include sleep apnea is neither the result of disease or injury incurred in or aggravated by service, nor is it proximately due to or aggravated by a disease for which service connection has been established.  38 U.S.C. §§ 101 (24), 1110, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.310.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from June 1996 to August 1996, from May 2004 to November 2005, and from January 2010 to February 2011.  The Veteran also served in the National Guard. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
The Veteran testified at a May 2018 videoconference hearing before the undersigned.  A transcript of those proceedings is associated with the record.
With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Service connection
Sleep disorder to include sleep apnea.
The Veteran contends that he has obstructive sleep apnea that began or was aggravated by his periods of active service.
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.
The Board concludes that, while the Veteran now has a diagnosis of obstructive sleep apnea, and while the evidence shows that he has reported sleep issues while in service, the preponderance of the evidence weighs against finding that obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease.  As such, the claim is denied.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303 (a). 
Active military service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty.  38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a).  Active military service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty.  Id. 
Where a chronic disease is shown during service, the subsequent manifestations at any later date, however remote, are service-connected, unless clearly attributable to intercurrent cause.  A continuity of symptomatology is required where the condition noted during service is not shown to be chronic.  38 C.F.R. § 3.303 (b).  However, continuity of symptomatology to substantiate service connection is limited to where involving a disease denoted as “chronic” under 38 C.F.R. § 3.309 (a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  When the evidence supports the claim, or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  If the preponderance of the evidence weighs against the claim, it must be denied.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Service treatment records are negative for complaints or findings related to sleep apnea.  The Veteran’s service treatment records do note sleep problems related to nightmares from posttraumatic stress disorder.  During his Board hearing, the Veteran reported an inservice history of extremely loud snoring, and awakening gasping for air, during his last deployment.
VA treatment records show the Veteran was not diagnosed with obstructive sleep apnea until April 2013, more than two years after final separation from active duty.  While the Veteran is competent to report having experienced symptoms of snoring, difficulty sleeping, early awakening, and problems with dreams, nightmares and night sweats intermittently since service, he is not competent to provide a diagnosis in this case or determine that any inservice symptoms were manifestations of his now diagnosed obstructive sleep apnea.  The etiology of a sleep disorder, to include sleep apnea, is medically complex, as it requires 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).  
Further, in November 2013 a VA examiner after reviewing the evidence of record opined that the Veteran’s obstructive sleep apnea was not at least as likely as not related to an in-service injury, event, or disease.  The examiner found that the appellant’s complaints of sleeping problems in 2004 and 2010 pertained to combat related stress issues.  After his final deployment the claimant was diagnosed with posttraumatic stress disorder.  In contrast, the Veteran was not diagnosed with obstructive sleep apnea until 2013.  Postservice the Veteran gained 12 to 15 pounds and the examiner opined that obesity was highly correlated with obstructive sleep apnea.  The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
The Board assigns great probative weight to the VA examiner’s opinion.  The examiner reviewed the claims folder and provided adequate rationale, to include consideration of lay evidence.  There is no competent evidence to the contrary.  In this regard, the Board acknowledges the lay statements of record and finds that, while the Veteran is competent to describe problems sleeping and other symptoms, he is not competent to diagnose sleep apnea or to provide an opinion as to its etiology.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  The lay statements do not outweigh the well-reasoned medical opinion of record. 
In summary, the preponderance of the probative evidence is against finding that sleep apnea is related to active service or is proximately due to or aggravated by any service-connected disability.  The doctrine of reasonable doubt is not for application and the claim is denied.  See 38 C.F.R. § 3.102. 
REASONS FOR REMAND
The issues of entitlement to an increased rating for posttraumatic stress disorder evaluated as 50 percent disabling; entitlement to an increased rating for residuals of a traumatic brain injury, evaluated as 40 percent disabling prior to January 1, 2017; and whether the rating for residuals of a traumatic brain injury was properly merged with posttraumatic stress disorder to include whether that merger’s de facto reduction from a 40 percent rating to a noncompensable rate was appropriate are remanded.  In this regard, the claimant in November 2016 filed a timely notice of disagreement to an October 2016 rating decision that denied these claims.  To date a statement of the case addressing these issues has not been issued.  Accordingly, further development is required.  Manlincon v. West, 12 Vet. App. 238 (1999).
The Board takes this opportunity to advise the Veteran that it cannot exercise jurisdiction over the remanded claims without a timely perfected appeal.  
The Board also takes this opportunity to advise the RO that the provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines.  38 C.F.R. § 3.105 (e), (i)(2)(i).  At the time of the October 2016 rating decision the 40 percent evaluation assigned for the Veteran’s traumatic brain injury had been in effect since February 2011.  The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344 (a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination.  See Brown v. Brown, 5 Vet. App. 413,417-18 (1993).  Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.  Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13.  A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless a fair preponderance of evidence weighs against the claim.  Brown, 5 Vet. App. at 421.  
Without deciding the claims the Board notes that the action of the RO in merging the ratings for posttraumatic stress disorder with residuals of a traumatic brain injury had the de facto effect of reducing the level of the appellant’s compensation.  As such, full and complete compliance with the procedures governing rating reductions is required.
In light of the foregoing this case is REMANDED for the following action:
Furnish the Veteran a statement of the case addressing the issues of entitlement to an increased rating for post-traumatic stress disorder, entitlement to an increased rating for residuals of a traumatic brain injury, evaluated as 40 percent disabling prior to January 1, 2017, and whether the rating for residuals of a traumatic brain injury was properly merged with posttraumatic stress disorder to include whether that merger’s de facto reduction from a 40 percent rating to a noncompensable rate was appropriate. The Veteran is advised that the Board will not exercise appellate jurisdiction over any claim in the absence of a timely perfected appeal. 
 
DEREK R. BROWN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Joseph Montanye, Associate Counsel  

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