Citation Nr: 1325583 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-35 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected sinusitis. 2. Entitlement to service connection for dementia, to include as secondary to obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran had active military service from February 1979 to November 1998, in addition to three months and six days of prior active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ) of the Board in March 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. During the hearing, the presiding VLJ noted the basis of the prior determination and the elements of the claims that were lacking to substantiate them. The presiding VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might help to substantiate the claims. Neither the Veteran nor his representative asserted during or since the hearing that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing. The hearing focused on the elements necessary to substantiate the claims. Consistent with Bryant, the presiding VLJ complied with the duties set forth in section 3.103(c)(2) such that the Board may now adjudicate the claims. Upon initial consideration of this case in November 2011, the Board remanded it for further evidentiary development, primarily for further VA Compensation and Pension examinations. The requested development having been completed, the case is now back before the Board for appellate disposition. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the sleep apnea is etiologically related to or had its onset during the Veteran's active duty military service or was caused or aggravated by service-connected sinusitis. 2. The preponderance of the evidence weighs against finding that the claimed condition of dementia is etiologically related to or had its onset during the Veteran's active duty military service. The Veteran is not service connected for sleep apnea. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for obstructive sleep apnea, include as secondary to service-connected sinusitis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria are not met to establish service connection for dementia, including secondary to obstructive sleep apnea. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2012). The Court has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through VCAA notice correspondence dated from October 2007, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The VCAA notice further explained how VA establishes disability rating and effective date elements of a claim for service connection. Although the VCAA letter did not specifically address the matter of secondary service connection under 38 C.F.R. § 3.310, this is not prejudicial to the Veteran as his and his representative statements indicate that he has actual knowledge of the information and evidence necessary to substantiate a claim for secondary service connection. For example, in a December 2008 VA Form 9, the Veteran stated that his research indicated that there is a link between dementia and sleep apnea. His representative contended at the hearing in March 2011 that the Veteran's dementia was caused or exacerbated by sleep apnea. The Veteran has also indicated that a doctor told him that his allergy symptoms were aggravating his sleep apnea. Therefore, remand for an additional VCAA letter is not required. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice correspondence was issued prior to the September 2008 RO rating decision on appeal and was therefore timely. The RO (including through the Appeals Management Center (AMC), on remand) has taken appropriate action to comply with the duty to assist the Veteran with his claims through obtaining service treatment records (STRs), records of VA and private outpatient treatment, and records pertaining to an award of disability benefits from the Social Security Administration (SSA). The Veteran has undergone VA Compensation and Pension examinations regarding the nature and etiology of his claimed conditions, including the VA examinations conducted pursuant to the Board's most recent remand directive. In furtherance of his claims, the Veteran has provided additional private medical records and lay statements. He has also provided additional copies of medical records in CD-ROM format which generally include documentation already of record. The Veteran presented testimony during a March 2011 Travel Board hearing. There is no indication of any further available relevant evidence or information that has not already been obtained. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Governing Law, Regulations and Analysis Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). With regard to secondary service connection, service connection may be granted 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). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Lay evidence may be competent to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit ruled that competence to establish a diagnosis can exist 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. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see Bostain v. West, 11 Vet. App. 124 (1998). However, lay testimony is competent if it relates to matters within direct observation and firsthand knowledge of the observer. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). A. Service Connection for Obstructive Sleep Apnea The Veteran maintains that his sleep apnea started during service or was caused or aggravated by his service-connected sinusitis. He indicated that a doctor told him that his allergy symptoms were aggravating his sleep apnea. The Veteran's service medical history is absent for any symptoms, complaints, or findings regarding sleep apnea. In November 2003, the Veteran was diagnosed at a private respiratory clinic as having had sleep apnea, specifically, a "history highly compatible with sleep apnea." It was indicated at that time his reported history of having been a severe snorer for many years. In February 2004, a sleep study confirmed that the Veteran had moderate to severe sleep apnea. In his October 2007 statement, an individual who previously served along with the Veteran indicated that during an exercise deployment to Korea in March 1990 he shared quarters with the Veteran, and noted at that time that the Veteran had trouble sleeping. He would wake up coughing and then go back to sleep. This happened two to three times a night. The Veteran's snoring was a regular occurrence, sometimes loud enough to impair the ability to sleep. According to the author of the statement, he subsequently noticed the same thing during permanent evacuation of Kadena Air Base from Clark Air Base due to displacement as a result of the eruption of Mount Pinatubo. The Veteran had joined him in July 1991 after being part of the cleanup crew. They shared base officers' quarters for a period of four months until November 1991, during which time the coughing appeared to be worse. In her December 2007 statement, the Veteran's spouse indicated that in 1989 she had accompanied the Veteran to his new duty station at Clark Air Base, Republic of the Philippines, and she recalled that during this time the Veteran started snoring. At the time, she attributed this to being tired from travel, poor air quality and allergies. Later, upon the Veteran's return from a temporary duty assignment in Okinawa in 1991, she noticed that his snoring was worsening and that he was starting to have what appeared to be allergy symptoms (congestion, trouble breathing). Then during the mid-1990s, she continued to notice these symptoms, as well as began to observe the Veteran having some trouble with driving. In his February 2008 statement, the Veteran recalled that while deployed to Korea in 1990, and temporarily housed in a large tent, he was told by another individual that he had not only snored loudly at night, but that he had stopped breathing momentarily several times during the night. The Veteran did not follow up at the time with the flight surgeon. Later when returning home from a deployment, his wife noticed the snoring problem. Following separation from service, a sleep study had confirmed the diagnosis of sleep apnea. An April 2008 administrative decision of the SSA indicates that the Veteran was deemed not disabled for purposes of a claim for disability benefits with that agency, with the primarily claimed conditions being sleep apnea, and affective/mood disorders. The Veteran underwent VA examination for sleep disorders in December 2011. The diagnosis of obstructive sleep apnea was initially confirmed. He recalled that when informed by a physician of the typical symptoms of sleep apnea in 2003, he responded that he had had those symptoms for several years. He indicated that after confirmation of a diagnosis of sleep apnea in 2004, he utilized the CPAP device regularly and no longer had sleep apnea events. A physical examination followed. The VA examiner then opined that the Veteran's obstructive sleep apnea was less likely than not present or incurred while on active duty, finding that instead the condition was more likely than not secondary to aging and elevated BMI, the number one risk factor for obstructive sleep apnea. Further indicated was that obstructive sleep apnea symptomatology would not have been compatible with aviation duties. The constant decision making, and multitasking required for flying would have been difficult if not near impossible for a person with obstructive sleep apnea without treatment. The fact that there never was a Peer Review Board due to decreased skills or similar episode testified against the Veteran having symptoms or obstructive sleep apnea while on active duty. "Snoring or stopping breathing" alone did not constitute a diagnosis of obstructive sleep apnea as per lay evidence tried to establish. It was further noted that the Veteran's sleep apnea was not caused or aggravated by a sinus condition, as medical literature did not sustain this association. The examiner stated that the Veteran's sleep apnea was most likely secondary to aging and BMI - the number one risk factor for OSA. Reviewing the above, the Board is constrained to deny service connection for sleep apnea. Essentially, regarding the time period in which the Veteran had service, the Board has before it the lay assertions of the Veteran and others on his behalf as to pertinent associated symptomatology. Under applicable law, these assertions are competent inasmuch as they involve observation of symptoms (namely, loud snoring and possible difficulty breathing). See generally, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). The Board also finds these statements to be credible. Meanwhile, the first clinical diagnosis of sleep apnea is not dated until November 2003, some five years post-service. It thus becomes necessary to make a retrospective medical determination as to whether the Veteran's current sleep apnea is a disorder of service origin, and in light of all relevant history. The presence of a causal nexus to service is an essential element to establish service connection for a claimed disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004). On this subject the December 2011 VA examination and opinion is dispositive, being well-articulated, grounded in review of the claims file, and following a supporting clinical rationale. The rationale given indicates that sleep apnea was less likely than not due to the Veteran's military service, and more likely associated with supervening factors of elevated BMI and aging. The examiner reasoned that the Veteran had never faced any type of occupational limitation or inquiry during service, when his actual duties required for flying would have been near impossible to carry out for an individual with untreated sleep apnea. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (recognizing that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The VA examiner likewise had considered the lay evidence of symptomatology during service, but stated that snoring or stopping breathing alone in his view did not medically constitute a diagnosis of sleep apnea. There is no contrary medical opinion of record. Consequently, the evidentiary conclusion warranted is that the weight of the competent and credible evidence is against the Veteran's claim. The Board affords more weight to the VA examiner's opinion than to the lay opinions of record. The lay statements carry less weight than the sleep study confirming sleep apnea several years after service and the VA examiner's opinion, a trained medical professional, that the Veteran's sleep apnea was not present or incurred during active duty or caused or aggravated by a sinus condition. Of note, the VA examiner specifically considered and accepted that the Veteran had symptoms of snoring and trouble breathing during service when arriving at his conclusion. The Board also notes that the Veteran stated that a doctor told him that his sinusitis was aggravating his sleep apnea; however, this is hearsay and is outweighed by the VA examiner's opinion of record. For these reasons, the claim for service connection for sleep apnea is denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Service Connection for Dementia The STRs on file do not reveal any indication of symptoms, complaints, or findings of dementia. There is also no service record regarding any underlying head injury. In October 1993, the Veteran was seen for complaints of back pain, which was within the time frame that the Veteran testified he was involved in a hard plane landing during which time he hit his head and also injured his back. However, there is no mention of any hard plane landing or back injury during the relevant time frame. Review of medical evidence reflects that VA general examination in March 2000 was absent mention of any neurological or psychiatric condition. A private clinical neurosurgical evaluation in January 2007 following the Veteran's cognitive complaints initially suggested a Chiari Malformation Type I on MRI of the brain, but this was later questioned and not considered symptomatic. A January 2007 neurological evaluation post-service at a military clinic, Elgin AFB, indicated in November 2006 the Veteran had first been seen with changes in behavior and problems with attention. The assessment was mental status changes related to attention and interpersonal relationships. A private physician's evaluation from Dr. J.W.H. in November 2007 noted in relevant part, in an overall health assessment, the condition of probable frontal-temporal dementia with agitated depression. It was noted that the Veteran had been exhibiting behaviorally increased agitation and behaviors which were quite uncharacteristic of him. Cognitive decline was also suspected. There was a question of probable alcohol abuse although the Veteran stated he had abstained from alcohol since November 2005. The Veteran's spouse in a December 2007 lay statement indicated that the Veteran started displaying forgetfulness shortly after he retired in 1998 and it slowly progressed until his forgetfulness and behavior changes seemed to start escalating in 2004. According to her account, he was referred to a mental health counselor by his last employer, as they noted he had trouble remembering things and could not keep up with job related tasks. This company terminated the Veteran from his employment in 2005 for non-performance associated with some of these symptoms, and he had not worked since then. According to the author of the statement, the Veteran had become uninhibited in his actions and verbal communications. He had trouble remembering things he had said and done, was unable to control his diet and was now under the care of a pulmonologist, psychiatrist, mental health counselor and neuropsychiatrist, in addition to treatment received from VA medical facilities. The Veteran's spouse also recalled the Veteran having mentioned his having sustained head trauma in a flying incident during service, which she thought might have contributed to onset of diagnosed dementia. The Veteran underwent private psychological evaluation from Dr. P.T.O. in January 2008, describing along with his spouse, various social and behavioral limitations with somewhat recent onset. The psychologist concluded after his evaluation that from a diagnostic perspective, the Veteran presented with inconsistencies in his presentation. The psychologist did not find any obvious evidence of dementia at that time, and felt that if the Veteran did have dementia it would appear to be rather mild and intermittent at most. There were no apparent problems of cognition that would cause the Veteran to be unable to be employed at all jobs from a neuropsychological perspective. He and his wife reported a history of psychological problems and questionable history of substance abuse and events around 2005 that called into question the cause of his primary complaints. In a February 2008 statement, the Veteran described having short term memory loss and having lost much of his sense of balance, along with limited attention span. He had not since been able to find employment in any capacity since being dismissed from a former job in 2006. A VA facility PET CT scan of the brain in November 2008 showed an impression of relative parietal temporal hypometabolism which could be seen with Alzheimer's type dementia, with the recommendation to "correlate clinically." Thereafter, pursuant to a November 2011 Board remand directive, the Veteran underwent a December 2011 VA Compensation and Pension examination. Following a mental status examination and claims file review, the VA examiner opined that it was less likely than not that the Veteran's fronto-temporal lobe dementia had its clinical onset during active service or was related to any in-service disease, event, or injury. The stated rationale was: ...[M]edical opinion, and rationale are based on DSM-IV and other professional guidelines, the Veteran's C-file, and the current exam. There is no clinical evidence of record that the Veteran experienced symptoms of dementia during his military service. Moreover, dementia is more likely than not to have an onset well beyond the age of the Veteran at his military discharge. Although the Veteran's wife has reported that the Veteran experienced symptoms consistent with dementia during his military service, his reported occupational functioning following military discharge is consistent with the perceived onset of symptoms much later. In other words, the Veteran and his wife's subjective reports regarding the onset of his symptoms are inconsistent with each other, and the Veteran's perceptions, and not his wife's, are consistent with the scientific literature regarding dementia and are therefore given greater weight by the undersigned. Based on the extrapolation of the documented historical evidence, clinical presentation, and available records, I believe it is more likely than not that the Veteran experiences no clinically significant occupational or social impairment due to mental disorder, and has, on average, a GAF of 65. The Veteran underwent another VA Compensation and Pension examination in September 2012, at which the examiner (a different psychologist that the last VA examiner) concluded that the Veteran did not meet the diagnostic criteria for an assessment of dementia. It was further noted that there was "no evidence that would support that the Veteran had clinical onset of dementia during active service. There was no medical evidence of dementia during the Veteran's service. After service he worked as a contractor for Northrop Grumman for almost 5 years, and then we worked as a software test engineer for approximately 3 years. He would not have been able to perform these jobs with dementia." Further concluded was that there was no evidence that the Veteran's sleep apnea caused or aggravated any cognitive impairments, including dementia. The Board finds that the criteria to establish service connection for dementia are not met. At the outset, there is considerable medical disagreement from evaluating treatment providers with regard to the precise nature and extent of the neurological condition manifested, including at least one recent VA examiner who found that the Veteran likely did not have dementia. However, the Board notes the opinion of several VA and private treatment providers above that the Veteran does indeed currently manifest the condition claimed. Therefore, the Board accepts that a preliminary diagnosis of dementia is sufficiently established, and the remaining dispositive question which need be addressed through the instant request is the likely etiology of dementia, and whether it is a disorder of service origin. On the critical matter of etiology, the Board has before it two competent and persuasive VA medical opinions which effectively rule out a causal linkage between dementia and military service. The latter opinion of September 2012 is articulated in view of the fact that a diagnosis of dementia was not forthcoming, but nonetheless addresses the issue of etiology in light of previous existing diagnoses of the condition. There is a common thread between the December 2011 and September 2012 VA examiners' opinions, which is that both opinions directly indicate the factual likelihood that it would have been near impossible for the Veteran to retain employment in such a demanding work environment post-service for eight years if he truly had the onset of dementia. The December 2011 examiner's opinion ventures further in that it considers the lay testimony of record, including the Veteran's spouse's observations that he had some cognitive decline soon after military retirement in 1998, but ultimately finds this account less compelling than the information provided apparently from the Veteran himself, including when balanced with his actual post-service work history, which strongly implicated a more recent onset of pertinent symptomatology. The December 2011 examiner also emphasized that even now the overall degree of impairment attributable to any diagnosable dementia on testing appeared to be relatively limited. Also taken into account by both examiners, is that the Veteran's age at the time of military retirement according to applicable literature was not commonly associated with the onset of dementia. Thus, viewing all of these elements together, there is sufficient competent and persuasive medical opinion evidence addressing the etiology of the Veteran's claimed condition of dementia, and which weighs against a finding of causation. The Veteran and his spouse's assertions have been considered. However, given the complex mental health questions posed here, as well as relatively attenuated initial clinical findings of any dementia as several years post-service, their opinions must be weighed against and ultimately found less probative than what the medical professionals have articulated in this case. The Board acknowledges the Veteran's wife's competent and credible statements that she observed him to have symptoms of dementia during and following service. However, the VA examiner(s) considered these statements, in addition to the Veteran's in-service and post-service work history, and concluded that the Veteran's dementia did not have its onset during service. Hence, service connection for dementia is being denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Given that service connection has not been awarded for the underlying condition of sleep apnea, the secondary service connection claim predicated on that disability is not warranted as a matter of law. ORDER Service connection for obstructive sleep apnea, including as secondary to service-connected sinusitis, is denied. Service connection for dementia, including as secondary to obstructive sleep apnea, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs