Citation Nr: 1801440 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-47 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of a lumbar strain with osteoarthritis. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with bipolar disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from July 1980 to September 2006. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from two different December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In one of the December 2009 rating decisions, the RO increased the Veteran's disability rating for residuals of a lumbar strain with osteoarthritis to 20 percent, effective July 28, 2009. In the other, the RO confirmed and continued a previous denial of service connection for sleep apnea. These issues were previously remanded by the Board in July 2015 and June 2017. In its July 2015 decision, the Board determined that the RO's December 2009 finding of a previous denial of service connection for sleep apnea was erroneous and that the issue should be adjudicated as a service connection claim rather than a petition to reopen a previously denied claim. In its June 2017 decision, the Board determined that the issue of whether a timely appeal was submitted concerning an August 19, 2015 Statement of the Case (SOC) (with regard to the issues of increased ratings for osteoarthritis of the right shoulder and pes planus) had been raised by the record in the Veteran's representative's April 2017 written argument but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). For this reason, the Board found that it did not have jurisdiction over them, and they were referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Because no action has yet been taken, these issues are again referred to the AOJ for appropriate action. The Board also notes that VA issued Form 8 ("Certification of Appeal") with regard to the shoulder and pes planus issues in December 2015. VA Form 8 "is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans' Appeals of jurisdiction over an issue." 38 C.F.R. § 19.35 (2017). Other than the issuance of Form 8, VA has not treated these issues as if they were part of the Veteran's appeal and so has not waived any objections it might have to the timeliness of filing. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). FINDINGS OF FACT 1. For the period on appeal, the Veteran's residuals of a lumbar strain with osteoarthritis were not manifested by a limitation of forward thoracolumbar flexion of 30 degrees or less, ankylosis, or incapacitating episodes. 2. Sleep apnea initially manifested many years after separation from service and is not shown to be etiologically related to service or to service-connected PTSD with bipolar disorder. CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a disability rating in excess of 20 percent for residuals of a lumbar strain with osteoarthritis were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 & 5242 (2017). 2. Sleep apnea was not incurred in or aggravated by service and was not caused or aggravated by service-connected PTSD with bipolar disorder. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was afforded VA examinations for his lumbar spine disability in September 2009 and May 2014 and for his lumbar spine disability and sleep apnea in November 2015 and July 2017. The Veteran and his representative have questioned the adequacy of the September 2009 and November 2015 examinations. "The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed.Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir. 2004) and applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed.Cir. 2011). First, the Veteran contends that the September 2009 examiner did not use a goniometer to evaluate his range of motion. "The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs." 38 C.F.R. § 4.46 (2017). The September 2009 examiner listed specific ranges of motion for the Veteran's lumbar spine that are not inconsistent with those measured by the other VA examiners. In addition, as discussed in detail below, the record raises significant doubts regarding the Veteran's credibility. The Veteran also contends that the September 2009 examiner was not of the correct medical specialty to examine his lumbar spine. As stated above, examiners are presumed competent. The United States Court of Appeals for Veterans Claims has specifically upheld the adequacy of VA examinations completed by nurse practitioners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). If a nurse practitioner is competent to render a medical opinion, a physician must logically also be competent, absent specific argument to the contrary. Even if the Veteran is correct in his assertion that the September 2009 examiner was a gynecologist, at most this means that the examiner's opinion is of less probative value, but not devoid of probative value, with regard to an issue outside of that specialty. See Sklar v. Brown, 5 Vet. App. 140, 146 (1993). The Veteran's representative contends that the November 2015 VA examiner was the subject of a professional complaint before her state's medical board. The Board has examined this complaint and its subject matter does not go to the examiner's conduct in her employment with VA or to her medical competence. While the Veteran's allegations are sufficient to raise the issue of the adequacy of the examinations, for all of the reasons given above, the Board finds that there is not "clear evidence" of irregularity in the September 2009 or November 2015 examinations. Even if there were, neither the Veteran nor his representative have challenged the adequacy of the May 2014 or July 2017 examinations. The July 2017 examiner, like the November 2015 examiner, specifically noted use of a goniometer for all range of motion measurements. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Lumbar Spine Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran contends that his residuals of a lumbar strain with osteoarthritis warrant a rating in excess of 20 percent. They are currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (for a lumbosacral strain) and 5242 (for degenerative arthritis of the spine) with a 10 percent rating from October 1, 2006 to July 27, 2009 and a 20 percent rating on and after July 28, 2009. Because VA received the Veteran's claim for an increased rating on July 28, 2009, only the 20 percent period is on appeal. Diagnostic Code 5242 provides for ratings under either the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under 38 C.F.R. § 4.71a, Diagnostic Code 5003 for arthritis. As Diagnostic Code 5003 provides for a compensable rating only if one is not available under the General Formula, it is not applicable to this case. Diagnostic Code 5237 only provides for a rating under the General Formula. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). Under the General Formula, a 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees of less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. In addition, Diagnostic Code 5243 provides for ratings under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, more than the minimum compensable rating has been in effect during the entire appeal period. The Veteran was afforded a VA examination in September 2009. The Veteran reported spasms and numbness, but no stiffness, fatigue, decreased motion, or paresthesia. He reported that his condition had not resulted in any incapacitation, but reported functional impairment when running or lifting heavy objects. He reported that flare ups affected lifting. On examination, the Veteran's gait was within normal limits. He required a brace for ambulation to help with support, but did not require other supportive devices. There was no evidence of radiating pain on movement. Muscle spasm was absent. No tenderness was noted. There was no guarding of movement. The examination revealed no weakness and muscle tone and musculature were normal. There was no ankylosis. Thoracolumbar motion was reported as forward flexion to 50 degrees with pain at 50 degrees, extension to 10 degrees with pain at 10 degrees, right lateral flexion to 20 degrees with pain at 10 degrees, left lateral flexion to 10 degrees with pain at 10 degrees, right rotation to 25 degrees, and left rotation to 30 degrees. Repetitive range of motion was not possible due to severe pain, stiffness, and fatigue. Spinal curvature was normal. The examiner diagnosed the Veteran with bulging disc disease. The examiner characterized the functional impact of the Veteran's lumbar disability as pain with sitting and standing as well as decreased range of motion. In his December 2009 Notice of Disagreement (NOD), the Veteran reported "severe difficulty in bending" and that he could not "bend over to pick up certain items," needing to be "close to something to hold on to" when getting up. He expressed a belief that his existing rating did not adequately account for pain and weakness. In his November 2010 substantive appeal (VA Form 9), the Veteran added that his lumbar spine disability interfered with his daily living at least four times a month, during which periods he could not get out of bed to go to work. The Veteran was afforded a VA examination of his peripheral nerves in March 2011. That examiner diagnosed the Veteran with IVDS on the left side. In a January 2012 private treatment appointment, the Veteran reported low back pain that was better with rest and worse with activity. On examination, the Veteran's gait was normal and steady. The treatment provider did not list specific ranges of motion but characterized the Veteran's overall range of thoracolumbar motion as "good" with flexion, extension, rotation, and lateral bending. The treatment provider noted that an MRI showed "most notably a bulging disc at L4-L5 with some degenerative disc disease throughout the lower lumbar spine." The Veteran was afforded an additional VA examination in May 2014. The examiner diagnosed the Veteran with lumbar degenerative disc disease. The Veteran reported back pain three to four times a day at a severity level of 8 out of 10 for two or more hours at a time. The Veteran did not report that flare ups had any functional impact. On examination, thoracolumbar motion was reported as forward flexion to 80 degrees with pain at 80 degrees, extension to 20 degrees with pain at 15 degrees, right and left lateral flexion to 30 or more degrees with pain at 20 degrees, and right and left lateral rotation to 30 or more degrees with pain at 30 or more degrees. On repetition, thoracolumbar motion was reported as forward flexion to 80 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 30 or more degrees, and left lateral rotation to 20 degrees. The examiner noted functional impairment due to decreased movement and pain on movement. There was no localized tenderness, pain to palpation, muscle spasm, guarding, or muscle atrophy. The examiner noted radiculopathy in the form of mild intermittent left lower extremity pain. There was no ankylosis or IVDS. The Veteran reported regular use of a brace. The Veteran reported that he managed to work as a dispatcher throughout the day but had to stand up due to pain after sitting for fifteen to twenty minutes. He reported that he could sit down again after twenty to thirty minutes of standing. The examiner opined that it was impossible to state the impact of flare ups or repetition over time without resort to undue speculation. The May 2014 VA examiner expressed doubts as to the Veteran's credibility. Specifically, the examiner stated: The [V]eteran was able to sit for 40 minutes while in the office without objective findings of pain. (sweating, fidgeting, standing up, etc.) He was also able to flex his back to pick up his shoes off the floor from a sitting position on the exam table. H[e] was able to move his back in full rotation to the right to place his back brace on the sitting bench, while he was seated on the exam table. When the [V]eteran is questioned about the 8/10 pain, typically being pain that people cannot function with, he becomes loud and obviously agitated with pressured speech and derogatory tone, stating that he is a marine and has a high pain tolerance. Then he began writing notes in a small notebook. The Veteran was afforded an additional VA examination in November 2015. The examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, and IVDS. The examiner opined that the Veteran's IVDS was a progression of his previous residuals of a lumbar strain with arthritis. The Veteran reported that his condition had worsened and he needed to wear his "back brackets" more often. The Veteran reported painful flare ups when sitting for long periods of time and pain during the night. He did not report functional impairment. On examination, thoracolumbar motion was reported as forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. The examiner noted that pain caused functional loss on all ranges of motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the back. Repetitive use testing was not performed, for the reason given below, and the examination was not during a flare up. However, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time or during flare ups. The examiner was unable to opine as to the impact of pain, weakness, fatigability, or incoordination with repeated use over time or during flare ups without resort to speculation, for the reason given below. There was no guarding or spasm. The examiner noted that disturbance of locomotion and interference with sitting and standing were additional factors contributing to disability. There was no muscle atrophy. The examiner noted radiculopathy in the form of moderate bilateral intermittent pain. There was no ankylosis. The examiner found that IVDS had not caused any incapacitating episodes in the past twelve months. The examiner found no functional impact from the Veteran's lumbar spine disability. The November 2015 VA examiner also expressed doubts as to the Veteran's credibility and gave this as the reason repetitive use testing was not performed and some functional impacts could not be determined without resort to speculation. Specifically, the examiner stated: [C]laimant was extremely difficult to work with. He would not put forth the effort when attempting to do any of the exam ROM testing. His physical appearance (muscle tone) did not correspond to his ROM [m]easurements. He was wearing a back brace that appeared to be new. He stated he wears the brace all the time. However, he was wearing it improperly at the time of exam. In a March 2016 statement, the Veteran again contended that the disability rating for his lumbar disability had "completely left out consideration on pain and weakness," and that his back had worsened and he continued to have "great difficulty." The Veteran was afforded an additional VA examination in July 2017. The examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine. The Veteran reported flare ups in the form of increased pain. He reported functional impairment in the form of decreased tolerance for activity during flare ups. On examination, thoracolumbar motion was reported as forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 0 degrees, and right and left lateral rotation to 5 degrees. No pain was noted on examination. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the back. Repetitive use testing did not lead to any additional loss of function. The examiner did not test repetitive use over time and the examination was not during a flare up. However, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time or during flare ups. The examiner found that pain significantly limited functional ability with repeated use over time and during flare ups, but could not describe this effect in terms of range of motion. There was no guarding or spasm. There was no muscle atrophy. There was no evidence of pain on passive range of motion testing or in non-weight bearing testing. The examiner noted radiculopathy in the form of mild bilateral numbness and intermittent pain. There was no ankylosis. The examiner found that the Veteran did not have IVDS. The examiner characterized the functional impact of the Veteran's lumbar spine disability as limited capacity to bend and lift as well as limited tolerance for standing, walking, and running. The July 2017 VA examiner also expressed doubts as to the Veteran's credibility. Specifically, the examiner stated, "[s]pontaneous movements during exam[ination] suggest greater range of motion than claimant demonstrated for measurement." The preponderance of the evidence described above shows that the Veteran's residuals of a lumbar strain with arthritis do not warrant a rating in excess of 20 percent during the period on appeal. None of the four VA examiners found that the forward flexion of the Veteran's thoracolumbar spine was 30 degrees or less. Examiners have consistently found no ankylosis and, given the existence of a range of thoracolumbar motion, the preponderance of the evidence is against a finding that the Veteran has ankylosis of the thoracolumbar spine as defined above. Although the January 2012 private treatment provider did not list any specific degree of limitation of movement, the Board finds it likely that, if a treatment provider had seen limitation of motion so severe as to be more accurately be described as immobility of part or all of the thoracolumbar spine, that provider would not have characterized the range of motion as "good." The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges the Veteran's concern that the existing rating does not fully account for his pain and weakness. However, the examiners have listed the impact of pain on the Veteran's forward flexion and none have found that it limits flexion to 30 degrees or less. To the extent that the Veteran's statements can be construed as contentions that his range of forward flexion is 30 degrees or less or similar to ankylosis during flare ups or after repetitive use over time, the Board notes that the past three VA examiners have all arrived at the conclusion that the Veteran is not credible when describing the severity of his symptoms or demonstrating his range of motion and the examiners have been convincing in explaining the reasoning for their conclusions. Given this consensus and the compelling rationales underlying it, the Board finds that the Veteran's lay assertions regarding the severity of his symptoms are of little probative value. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45. The Veteran's existing disability ratings account for functional loss due to pain and, to the extent that the Veteran contends that his pain and weakness cause greater functional impairment, for the reasons given above, the Board finds that his contentions are of little probative value. The Board additionally considered whether there are any other Diagnostic Codes which could apply to the Veteran's current lumbar spine disability. Specifically, the Board has considered whether a higher rating is warranted under the formula for rating IVDS based on incapacitating episodes. There is evidence in the record of a diagnosis of IVDS and the Veteran has reported in his November 2010 substantive appeal (VA Form 9) that his lumbar spine disability frequently confines him to his bed. However, the definition of an incapacitating episode given above requires that bed rest be "prescribed by a physician" and there is no evidence in the record of such a prescription. In addition, for the reasons given above, the Board finds that the Veteran's contentions regarding the severity of his symptoms are of little probative value. For these reasons, a rating based on incapacitating episodes caused by IVDS is not warranted. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. Any associated objective neurologic abnormalities caused by the Veteran's low back disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). The Veteran's left and right lower extremity radiculopathy has already been separately rated. The evidence of record does not show that the Veteran has any other neurologic abnormalities due to his low back disability. For these reasons, the Board finds that the Veteran's disability picture is most closely approximated by the 20 percent criteria for the period on appeal. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. Finally, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that his service-connected disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Sleep Apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has a current diagnosis of sleep apnea. He contends that this disability is due to his active duty service. The Veteran's service treatment records contain no mention of sleep apnea. During the Veteran's June 2006 retirement examination, the examiner found his mouth, throat, lungs, and chest to be normal. The Veteran reported a history of ear, nose, or throat trouble but clarified that he was referring to right ear symptoms; he denied any history of breathing-related symptoms or frequent trouble sleeping. As a result of an August 2009 private polysomnogram, the Veteran was diagnosed with obstructive sleep apnea. In his October 2009 claim, the Veteran reported that he was "recently diagnosed" with sleep apnea and that it "aggravates [his] svc. PTSD." The RO appears to have misinterpreted this as a contention that the Veteran's PTSD aggravated his sleep apnea. The Veteran was afforded a VA examination in November 2015. He reported that sleep apnea had its onset in 2008. The examiner opined that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of his PTSD with bipolar disorder, but added that this was "very difficult to determine" and recommended another sleep study to clarify whether the Veteran had sleep apnea. The examiner added that a baseline level of severity could not be determined, but it was not at least as likely as not that his sleep apnea was aggravated beyond its normal progression by his PTSD with bipolar disorder. The examiner provided no rationale for this opinion other than an expressed desire for a current sleep study or print out from the Veteran's CPAP machine. In a March 2016 statement, despite his earlier statement that his sleep apnea had its onset in 2008, the Veteran contended for the first time that, although sleep apnea was not diagnosed during his active duty service, he had "all of the symptoms of sleep apnea" during that time. The Veteran provided no further details in support of this contention. The Veteran was afforded an additional VA examination in July 2017. He again reported that his sleep apnea had its onset in 2008. The examiner opined that sleep apnea was less likely than not incurred in or caused by active duty service. The examiner's rationale was that there was no mention of snoring or sleep issues in the Veteran's service treatment records and the Veteran specifically denied trouble sleeping during his separation assessment. The examiner also opined that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of his PTSD with bipolar disorder. The examiner's rationale was that sleep apnea "is an upper airways disease causes (sic) in part by obesity" and is "not caused by or aggravated by mental health issues." The examiner also found that the current severity of the Veteran's sleep apnea was not greater than the baseline set in the 2009 sleep study. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470. However, in this case he is not competent to provide an etiology opinion for his sleep apnea. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to render an opinion on the etiology of any current sleep apnea or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the Veteran's opinion that his current sleep apnea is etiologically related to active duty service is not competent evidence and it cannot be assigned any probative weight. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions in this case. In addition, the Board has the discretion to make credibility determinations and otherwise weigh the evidence being submitted, including the Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board may take the lack of contemporaneous medical records into account when weighing a veteran's lay evidence. See Buchanan, 451 F.3d at 1336. The Board notes that the Veteran has offered multiple conflicting accounts of his medical history. He has at times stated that his sleep apnea symptoms had their onset in 2008 or at some unspecified point during his active duty service. During his June 2006 retirement examination, he reported a significant number of medical issues, including shoulder and knee pain, acid reflux, gall bladder surgery, "sun spots," and a "crackly" right ear. Despite being given the opportunity to report any frequent trouble sleeping or any of a wide range of breathing-related symptoms, the Veteran specifically denied any such trouble. The Board also notes the VA back examiners' findings regarding the issue of credibility. Under these circumstances, the Board finds that the Veteran's March 2016 lay assertion that his sleep apnea symptoms had their onset during his active duty service is outweighed by his denials during his June 2006 retirement examination and his statements to the November 2015 and July 2017 VA examiners that his sleep apnea had its onset in 2008. No treatment provider or examiner has found an etiological relationship between the Veteran's sleep apnea and his active duty service and the July 2017 VA examiner's rationale against a finding of service connection on a direct or secondary basis is convincing. Even if the Board were to agree with the RO's interpretation of the Veteran's October 2015 statement as a contention that his sleep apnea was aggravated by his PTSD with bipolar disorder, a Veteran's conclusory statement regarding causation is not sufficient to establish a nexus between his service-connected PTSD with bipolar disorder and his sleep apnea. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Further, as noted above, the Veteran in this case is not competent to provide an etiology opinion with regard to his sleep apnea. Because the preponderance of the evidence is thus against finding that the Veteran's sleep apnea is etiologically related to his active duty service or his service-connected PTSD with bipolar disorder, entitlement to service connection for sleep apnea is denied. ORDER Entitlement to a disability rating in excess of 20 percent for residuals of a lumbar strain with osteoarthritis is denied. Entitlement to service connection for sleep apnea is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs