Citation Nr: 1805316 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-46 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for obstructive sleep apnea (sleep apnea) to include as secondary to service connected diabetes mellitus type II (diabetes). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran had periods of active duty service in the United States Navy from January 1961 to June 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran had previously requested to reschedule his hearing before the Board. This hearing was never rescheduled. However, as a full grant of the benefit on appeal is being granted, there is no prejudice to the Veteran. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's sleep apnea is proximately due to his service connected diabetes. CONCLUSION OF LAW The criteria for establishing service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist and to Notify Neither the Veteran nor his representative has raised any 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 duty to assist argument). II. Legal Criteria Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007): Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have been found not to be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Merits of the Claim The Veteran has put forth two theories of entitlement: First, the Veteran contends that his sleep apnea was incurred in service. Second, the Veteran contends his sleep apnea is proximately due to his service-connected diabetes. The Veteran states his diabetes medication has caused a significant amount of weight gain, which led to his sleep apnea. The evidence does not support a finding that the Veteran's sleep apnea was incurred in service. The Veteran has been diagnosed with sleep apnea. The next question, for a claim of direct service connection, is whether there was an in-service incurrence of the Veteran's sleep apnea. The Veteran's service treatment records (STRs) are negative for any mention of sleep problems or sleep apnea. Because there was no in-service incurrence of the Veteran's sleep apnea and there is no evidence the Veteran's sleep apnea pre-existed service and was then aggravated by his service, direct service connection must be denied. The evidence supports a finding that the Veteran's sleep apnea is proximately due to his service-connected diabetes. In October 2014, one of the Veteran's examiners submitted a letter. The examiner, who treated the Veteran for his obstructive sleep apnea, stated that obesity is a known risk factor for obstructive sleep apnea and that the Veteran had gained a significant amount of weight due to his diabetes medication. The examiner opined it was at least as likely as not that the Veteran's diabetes therapy may be a contributing factor to his sleep apnea. In April 2015, another of the Veteran's examiners submitted a letter. The examiner noted that weight loss would improve the Veteran's sleep apnea. However, the examiner stated despite efforts to lose weight through diet and exercise, the Veteran had not been able to achieve his weight loss goals, which was in part due to his insulin required to manage his diabetes. The Veteran had a hearing before a Decision Review Officer (DRO) in June 2015. The Veteran recounted the history of his diabetes treatment and stated he believed he first noticed his sleep apnea in 1995. The Veteran reported his treating physician was no longer in practice and when he called for records, he was told the records had been destroyed. The Veteran was afforded an examination for his sleep apnea in November 2014. The examiner stated that diabetes does not lead to sleep apnea. The examiner stated that the best documented risk factor for obstructive sleep apnea is obesity. The examiner opined that the Veteran's sleep apnea was not caused by or aggravated beyond the natural progression by the Veteran's service connected diabetes, to include treatment for the condition. While one examiner stated the Veteran's sleep apnea is not due to his service connected diabetes, two examiners stated that the Veteran's diabetes medication contributed to his obesity and but for his diabetes treatment, the Veteran would not have sleep apnea. The Board finds that the evidence is at least in equipoise and that the benefit of the doubt applies. Therefore, the Board finds that service connection for sleep apnea is warranted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs