Citation Nr: 1326324 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 08-06 683A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a right hip disability, claimed as secondary to the service-connected left knee disability. 2. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected asthma, hypertension, sinusitis, and rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In August 2011, the Board remanded this case to the RO via the Appeals Management Center (AMC), in Washington, DC. In the remand, the Board asked that the RO/AMC obtain VA medical records and obtain additional medical opinion as to the nature and etiology of the claimed disabilities. The RO/AMC obtained the VA treatment records and obtained a medical opinion in August 2013. As the requested development has been completed to the extent possible, no further action to ensure compliance with the remand directives is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. VA treatment records dated from December 2011 to January 2013 have been associated with the Virtual VA file. The RO considered VA treatment records dated to February 2012 in the February 2012 supplemental statement of the case. The Veteran did not submit a waiver of initial RO consideration of the evidence not considered in the supplemental statement of the case. However, upon review of this particular evidence, the Board finds no reason to seek a waiver of consideration of this evidence by the RO or to remand the matter for RO consideration of the evidence as the VA treatment records are not pertinent and do not relate to or have a bearing on the appellate issue. 38 U.S.C.A. § 20.1304 (2012). The VA treatment records dated from February 2012 to January 2013 address the Veteran's surgery for total knee replacements. The additional VA treatment records address the knee operations and do not address the severity of the service-connected knee disabilities. The additional VA treatment records do not address the claimed right hip disability or the claimed sleep apnea. FINDINGS OF FACT 1. Disease or chronic symptoms of a right hip disability were not manifested during service. 2. The Veteran did not continuously manifest symptoms of a right hip disability in the years after service. 3. Degenerative joint disease of the right hip was not manifested to a degree of ten percent within one year of service separation. 4. The degenerative joint disease and strain of the right hip are not caused by any in-service event, are not related to active service, and are not caused or aggravated by a service-connected disability including the service-connected left knee disability. 5. Disease or symptoms of sleep apnea were not manifested during service. 6. The Veteran did not continuously manifest recurrent symptoms of sleep apnea in the years after service. 7. Sleep apnea is not caused by any in-service event, is not related to active service, and is not caused or aggravated by a service-connected disability including the service-connected asthma, hypertension, congestive heart failure, and rhinitis. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease and strain of the right hip are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by letters dated in May 2005 and March 2006, prior to the initial adjudication of the claims, and in August 2011. In these letters, VA informed the Veteran of the evidence and information needed to substantiate a claim for service connection and secondary service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letters told the Veteran that he could obtain private records himself and submit them to VA. 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. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the March 2006 letter explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran's service treatment records are associated with the claims folder. VA treatment records dated from 1998 to February 2012 are associated with the claims folder. Private medical records from P.B. Hospital and B.E. Medical Center are associated with the claims file. VA provided examinations in September 2005 and obtained medical opinions in August 2011 to obtain medical evidence as to the nature and likely etiology of the claimed disabilities. The medical opinion as to etiology was obtained in August 2011. The examination and medical opinions are adequate because the examination and medical opinions were performed by medical professionals based on review of the claims file, solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiners considered the Veteran's service treatment records and medical history and provided a medical opinion as to whether the claimed disabilities were related to active service and to the service-connected disabilities. Neither the Veteran nor his representative has challenged the adequacy of the examinations obtained for these issues. Sickels v. Shinseki, 643 F.3d 1362(Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claims and VA met its duty to assist the Veteran. Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, 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.A. §§ 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. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended effective October 10, 2006. However, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. The Veteran filed his claim in April 2005, prior to the effective date of the amended provision. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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.A. § 7105; 38 C.F.R. §§ 3.102, 4.3, 4.7. Analysis Service Connection for a Right Hip Disability The Veteran contends that his current right hip disability was caused by the service-connected left and right knee disabilities. Service connection was established for a left knee disability in April 1993 and a 10 percent rating was assigned from August 1, 1992. Service connection for a right knee disability was established in July 1993 and a zero percent rating was assigned form August 1, 1992. In April 2006, a 10 percent rating was assigned to the right knee disability. In January 2013, the service-connected left and right knee disabilities were characterized as right total knee replacement and left knee replacements. A 100 percent rating was assigned to the right total knee replacement from March 27, 2012 pursuant to 38 C.F.R. § 4.30 and a 100 percent rating was assigned from May 1, 2012 and a 30 percent rating was assigned from May 1, 2013 under Diagnostic Code 5055. A 100 percent rating was assigned to the left total knee replacement from January 29, 2013 pursuant to 38 C.F.R. § 4.30 and a 100 percent rating was assigned from March 1, 2013 and a 30 percent rating was assigned from March 1, 2014 under Diagnostic Code 5055. There is competent evidence of a current right hip disability. A September 2005 VA examination report shows a diagnosis of mild to moderate degenerative joint disease and strain of the right hip. See also the September 2005 x-ray findings. The Board finds the weight of the competent and credible evidence shows that the degenerative joint disease and strain of the right hip are not proximately due to or aggravated by the service-connected left and right knee disabilities or other service-connected disabilities. There is competent and credible evidence which establishes that there is no relationship between the degenerative joint disease and strain of the right hip and the service-connected left and right knee disabilities. In August 2011, VA sought an addendum medical opinion as to whether the current right hip disability was proximately due to or aggravated by the service-connected left and right knee disabilities. The Veteran had previously undergone a VA examination of the right hip in September 2005. The September 2005 VA examination report indicates that the Veteran reported that he injured his left knee early in his military career and he underwent a meniscectomy with good results. The Veteran reported that he was able to return to his normal daily activities including running but over the years, he developed left knee pain and he started to favor that side. The Veteran reported that he was always using the right knee and right side when climbing stairs and he reported that he had a slight limp because of the left knee at times. The Veteran reported that he has had pain in his knees for the past five years and he has had bilateral knee stiffness. He reported that he has only been able to walk a quarter of a block due to the pain. The Veteran stated that he had occasional pain in his right hip that occurred once or twice a month and lasted for a few days and then subsided. The Veteran had no history of injury or surgery to the right hip. X-ray examination of the right hip revealed mild to moderate degenerative joint disease. The diagnosis was right hip degenerative joint disease and strain which was "less likely than not" secondary to the Veteran's service-connected left knee condition "given that [the Veteran's] right hip symptoms had been ongoing for only two years and there were multiple factors which could contribute to this condition, primarily, his morbid obesity." The Board remanded this matter in August 2011 for an addendum medical opinion and asked the VA examiner to describe and/or indicate the other "multiple factors" contributing to the Veteran's disability. In an August 2011 VA medical opinion, the VA examiner who conducted the September 2005 VA examination indicated that he reviewed the claims file. The VA examiner opined that it was less likely than not that the Veteran's current right hip disability including the degenerative joint disease of the right hip was proximately due to, the result of, or aggravated by the left knee disability given the lack of a close temporal relationship between the onset of the left knee and right hip symptoms. The VA examiner again noted that multiple factors contribute to the right hip disability with obesity, age, and genetic predisposition being the major risk factors in the absence of direct injury to the joint. The VA examiner stated that in this Veteran, obesity was the most prominent factor given the Veteran's history of morbid obesity. The Board finds the August 2011 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder including the service treatment records, the Veteran's medical history, and the Veteran's own lay statements as to the right hip disability, and examined the Veteran before rendering the medical opinion. The VA examiner specifically identified the major risk factors for the Veteran's right hip disability. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. In Nieves-Rodriguez, 22 Vet. App. 295, the Court held that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. For these reasons, the Board has assigned great probative weight to the opinion of the VA physician and finds that it outweighs the unsupported lay theories and lay statements of the Veteran and establishes that the Veteran's degenerative joint disease and strain of the right hip are not proximately due to or aggravated by the service-connected left knee disability. The Veteran himself has related his degenerative joint disease and strain of the right hip to the service-connected left knee disability. In the March 2008 VA Form 9, the Veteran stated that the degenerative joint disease of the right hip was due to compensation from the service-connected left and right knee disabilities. The Veteran also noted that the VA examiner indicated that his ongoing health problems were due to his morbid obesity. The Veteran indicated that his continued problems due to the service-connected asthma, orthopedic problems, heart, and hypertension caused his obesity. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of arthritis or strain in the right hip falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Lay testimony on the question of relating the current degenerative joint disease and strain of the right hip to a service-connected disability is not competent in the present case, because the Veteran is not competent to state that this disease was caused by another disability. See Davidson v. Shinseki, 581 F.3d 1313, 316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). An opinion of etiology of the right hip disability would require knowledge of the complexities of the musculoskeletal system and the various causes of arthritis, and would involve objective clinical testing that the Veteran is not competent to perform. There is no competent medical evidence of record indicating that the current degenerative joint disease and strain of the right hip were caused or aggravated by any of the service-connected disabilities. The record contains many medical treatment notations regarding the various orthopedic disabilities but at no time did a physician or other medical professional express an opinion regarding a link between the current right hip disability and the service-connected disabilities. Because the Veteran does not possess the necessary medical expertise to render an opinion as to the cause of a disease, his assertions do not constitute competent evidence upon which the Board may rely. An opinion as to the etiology and onset of arthritis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. There is no competent evidence which relates the current degenerative joint disease and strain of the right hip to the service-connected left knee disability or any other service-connected disability. The Board also finds that the Veteran's own lay statements as to the cause of the morbid obesity to have not probative value because such statements are not competent and not credible. As noted above, the Veteran, as a lay person, is competent to describe observable symptoms. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue of the cause of the Veteran's obesity, an opinion as to the cause of obesity falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. In the June 2008 VA Form 9, the Veteran asserts that his morbid obesity is caused by the medications prescribed for the service-connected disabilities and due to his inability to exercise due to the service-connected disabilities. The Veteran does not have the medical expertise to render a medical opinion as to the side effects of certain medication, including whether such medications cause obesity. The Veteran has not submitted any competent medical evidence to support this contention. The VA treatment records including the July 2011 VA nutrition clinic records do not document that the weight gain was due to medications. VA psychiatric treatment records do not document an eating disorder. See for instance the July 2011 VA mental health treatment records. The competent and credible evidence of record establishes that the Veteran was in an undesirable overweight status due to energy imbalance and excessive calorie intake. See the July 2011 VA nutrition treatment records. The Veteran also asserts that he was obese due to his inability to exercise due to the service-connected disabilities. The Veteran is competent to state that he is unable to exercise due to service-connected disabilities; he is competent to testify as to observable events and symptoms. See Jandreau, supra. However, the Board finds that these statements are not credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). In the present case, the Board finds that the Veteran's statements are biased and are inconsistent with other evidence of record including medical evidence. The competent and credible evidence of record establishes that the Veteran was in an undesirable overweight status due to energy imbalance and excessive calorie intake. See the July 2011 VA nutrition treatment records. More recent VA treatment records dated in January 2012 show that the Veteran was able to lose a substantial amount of weight due to diet and exercise. A January 2012 VA treatment records notes that the Veteran lost over 100 pounds and his current weight was 233 pounds. The weight of the competent and probative evidence establishes that the degenerative joint disease and strain of the right hip are not proximately due to or aggravated by a service-connected disability, but are due to risk factors unrelated to service or a service-connected disability. As such, service connection for degenerative joint disease and strain of the right hip as secondary to the service-connected left knee disability or other service-connected disability is denied. 38 C.F.R. § 3.310; Allen, supra. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for degenerative joint disease and strain of the right hip on a secondary basis, and the claim must be denied. The Board has also considered whether service connection for degenerative joint disease and strain of the right hip is warranted on a presumptive or direct basis. In that regard, service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of a chronic right hip disability. There is no competent or credible evidence of chronic right hip symptoms in service or after service until April 2005, when the Veteran filed his claim for service connection. The Veteran does not allege chronic and continuous symptoms of a right hip disability in service and since service. The medical evidence of record shows that right hip degenerative joint disease was first diagnosed in September 2005, upon VA examination. The Board finds the weight of the competent and credible evidence shows that the degenerative joint disease of the right hip did not manifest in service or within one year of service separation and is not related to active service. The Board finds that the degenerative joint disease of the right hip is a "chronic disease" listed under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b) are applicable. See Walker, supra. However, the Board finds that the weight of the competent and credible evidence establishes that the Veteran did not experience "chronic" symptoms of right hip pain or any other chronic right hip symptoms during service, he did not have continuous or chronic right hip symptoms since service, and the degenerative joint disease of the right hip first manifested over 10 years after service separation and is not related to disease or injury in service but is related to obesity, age, and genetic predisposition. Thus, presumptive service connection for degenerative joint disease of the right hip under the provisions of 38 C.F.R. § 3.303(b) is not warranted. Finally, the Board finds that the weight of the evidence demonstrates that degenerative joint disease and strain of the right hip are not caused by any in-service event or injury and are not medically related to service. The Veteran denied having a right hip injury. See the September 2005 VA examination report. The service records show that the right hip was normal upon service separation. The March 1992 separation examination report indicates that the Veteran reported multiple orthopedic symptoms including arthritis and joint pain. He reported having aching in his left hip. He did not identify any symptoms pertinent to the right hip. A right hip disability was not diagnosed. VA examination conducted in May 1993 does not document any findings of complaints, symptoms, or diagnosis of a right hip disability. As noted above, a right hip disability was not diagnosed until 2005, over 10 years after service separation. The lapse in time between service and the first diagnosis of a right hip disability weighs against the Veteran's claim. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in the assessment of the claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent and credible lay or medical evidence that establishes that the right hip disability first manifested in service or is related to any event or incident in service. The weight of the competent and credible evidence establishes that the right hip was normal in service and upon service separation. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for degenerative joint disease and strain of the right hip including as a presumptive disease, on a direct basis, and on a secondary basis, and the claim must be denied. Service Connection for Sleep Apnea The Veteran contends that the Veteran's current sleep apnea is in some way causally related to service-connected asthma, hypertension, sinusitis, and rhinitis. In the March 2009 VA Form 9, the Veteran stated that the sleep apnea was a direct result of ongoing problems with his respiratory and hypertension problems. The Veteran also indicated that the VA examiner stated that his ongoing health problems were due to his morbid obesity. The Veteran indicated that his continued problems due to the service-connected asthma, orthopedic problems, heart, and hypertension caused his obesity. The Veteran also asserted that his morbid obesity is caused by the medications prescribed for the service-connected disabilities and due to his inability to exercise due to the service-connected disabilities. In April 1993, service connection was established for asthma rated as 30 percent disabling from August 1, 1992 and for allergic rhinitis rated as zero percent disabling from August 1, 1992. In July 1993, service connection was granted for hiatel hernia rated as 10 percent disabling from August 1, 1992, sinusitis rated as zero percent disabling from August 1, 1992, hypertension rated as zero percent disabling from August 1, 1992, and disabilities of the right elbow, right knee, and left hip all rated as zero percent disabling from August 1, 1992. In December 1993, a 10 percent rating was assigned to the hypertension and a 30 percent rating was assigned to the asthma. In April 2006, service connection was granted for congestive heart failure rated as 60 percent disabling from April 28, 2005, and depressive disorder rated as 50 percent disabling from April 28, 2005. A 10 percent rating was assigned to the right knee disability. There is competent evidence of a current diagnosis of sleep apnea. A November 2002 sleep study indicates that the findings were consistent with severe obstructive sleep apnea. VA treatment records and the September 2005 VA examination report confirm this diagnosis and indicate that the Veteran continued to be treated for sleep apnea. The Board finds the weight of the competent and credible evidence shows that the sleep apnea is not proximately due to or aggravated by the service-connected disabilities including asthma, hypertension, congestive heart failure, rhinitis, and sinusitis. There is competent and credible evidence which establishes that there is no relationship between the sleep apnea and the service-connected disabilities. In August 2011, VA sought an addendum medical opinion as to whether the current sleep apnea was proximately due to or aggravated by the service-connected disabilities. The Veteran had previously undergone a VA examination of the sleep apnea in September 2005. The September 2005 VA examination report indicates that the Veteran reported that sleep apnea was diagnosed after service and his symptoms have improved with the use of a CPAP. The diagnosis was sleep apnea which was not secondary to the asthma and hypertension and was "less likely as not" related to the chronic sinusitis and allergic rhinitis. The examiner indicated that the morbid obesity played a significant role in this condition. The Board remanded this matter in August 2011 for an addendum medical opinion and asked the VA examiner to describe and/or indicate the other "multiple factors" contributing to the Veteran's disability. In an August 2011 VA medical opinion, the VA examiner who conducted the September 2005 VA examination indicated that he reviewed the claims file. The VA examiner opined that it was less likely than not that the Veteran's current sleep apnea was proximately due to, the result of, or aggravated by the service-connected disabilities including asthma, hypertension, congestive heart failure, sinusitis, and rhinitis. The VA examiner indicated that as previously stated, the Veteran's obesity played a significant role given that the Veteran had a history of morbid obesity and this is a major risk factor. The examiner stated that gender and age were also significant factors. The VA examiner stated that the service-connected conditions did not result in or significantly aggravate the sleep apnea. The Board finds the August 2011 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder including the service treatment records, the Veteran's medical history, and the Veteran's own lay statements as to the sleep apnea, and had examined the Veteran before rendering the medical opinion. The VA examiner specifically identified the major risk factors for the Veteran's sleep apnea. The medical opinion is based on sufficient facts and data. See Nieves-Rodriguez, supra. For these reasons, the Board has assigned great probative weight to the opinion of the VA physician and finds that it outweighs the unsupported lay theories and lay statements of the Veteran and establishes that the Veteran's sleep apnea are not proximately due to or aggravated by the service-connected disabilities. There is competent and credible medical evidence that supports the VA medical opinion that obesity is a major risk factor for sleep apnea. The November 2002 sleep study indicates that weight loss has been shown to be beneficial in treating sleep apnea. It was further noted that it was important to rule out any specific upper airway or nasal obstruction or hypothyroidism. These disorders were not subsequently detected. The Veteran himself has related his sleep apnea to his service-connected disabilities. In the March 2009 VA Form 9, the Veteran stated that the VA examiner indicated that his ongoing health problems were due to his morbid obesity. The Veteran asserted that his service-connected asthma, orthopedic problems, heart, and hypertension caused his obesity. As discussed in detail above, the Veteran, as a lay person, is competent to describe observable symptoms. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra; as to the specific issue in this case, an opinion as to the cause of the sleep apnea falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Lay testimony on the question of relating the current sleep apnea to a service-connected disability is not competent in the present case, because the Veteran is not competent to state that this disease was caused by another disability. See Davidson, supra; Kahana, supra. An opinion of etiology of the sleep apnea would require knowledge of the complexities of the respiratory system and the various causes of sleep apnea. There is no evidence that the Veteran's has such medical expertise. There is no competent medical evidence of record indicating that the current sleep apnea was caused or aggravated by a service-connected disability. The record contains many medical treatment notations regarding the sleep apnea and the service-connected disabilities including the congestive heart failure, hypertension, and asthma but at no time did a physician or other medical professional express an opinion regarding a link between the current sleep apnea and any service-connected disability. For the reasons set forth in detail above, the Board also finds that the Veteran's own lay statements that the morbid obesity is caused by the service-connected disabilities including medications prescribed for the disabilities and the inability to exercise due to the service-connected disabilities to have no probative value because such statements are not competent and are not credible. The Veteran has not submitted any competent medical evidence to support this contention. The competent and credible evidence of record establishes that the Veteran was in an undesirable overweight status due to energy imbalance and excessive calorie intake. See the July 2011 VA nutrition treatment records. More recent VA treatment records dated in January 2012 show that the Veteran was able to lose a substantial amount of weight due to diet and exercise. A January 2012 VA treatment record notes that the Veteran lost over 100 pounds and his current weight was 233 pounds. The weight of the competent and probative evidence establishes that the sleep apnea is not proximately due to or aggravated by a service-connected disability, but are due to risk factors unrelated to service or service-connected disabilities. As such, service connection for the sleep apnea is as secondary to the service-connected disabilities is denied. 38 C.F.R. § 3.310; Allen, supra. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for the sleep apnea on a secondary basis, and the claim must be denied. The Board has also considered whether service connection for sleep apnea is warranted on a presumptive or direct basis. In that regard, service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of sleep apnea or any chronic or recurrent symptoms of this disorder. There is no competent or credible evidence of chronic or recurrent symptoms in service or after service until November 2002 when sleep apnea was diagnosed. The Veteran does not allege recurrent or continuous symptoms of sleep apnea in service and since service. The Board finds the weight of the competent and credible evidence shows that sleep apnea did not manifest in service or within one year of service separation and are not related to active service. Sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b) are not applicable. Finally, the Board finds that the weight of the evidence demonstrates that sleep apnea are not caused by any in-service event or injury and are not medically related to service. The service treatment records do not document a diagnosis of sleep apnea. The March 1992 separation examination report indicates that the Veteran reported multiple respiratory symptoms including asthma, shortness of breath, pain or pressure in his chest, and chronic cough; sleep apnea was not reported or diagnosed. VA examinations conducted in May 1993 and December 1994 do not document any findings of complaints, symptoms, or diagnosis of sleep apnea. As noted above, sleep apnea was not diagnosed until 2002, almost 10 years after service separation. The lapse in time between service and the first diagnosis of sleep apnea weighs against the Veteran's claim. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in the assessment of the claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent and credible lay or medical evidence that establishes that the sleep apnea first manifested in service or is related to any event or incident in service. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for sleep apnea on a direct basis and on a secondary basis, and the claim must be denied. ORDER Service connection for degenerative joint disease and strain of the right hip on a direct and secondary basis is denied. Service connection for sleep apnea on a direct and secondary basis is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs