Citation Nr: 18147673 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-30 991 DATE: November 6, 2018 ORDER Entitlement to service connection for sleep apnea disorder, to include as secondary to service connected rhinitis with sinusitis is denied. FINDING OF FACT Evidence of the claims file reveals that the Veteran’s service connected rhinitis and sinusitis did not proximately cause or aggravate the Veteran’s current sleep apnea disorder. Rather, the Veteran’s excessive weight gain after separation from service aggravated the relaxation or external compression of his oropharynx during sleep which resulted in his current sleep apnea disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea as secondary to service connected rhinitis with sinusitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty service form July 1992 to February 2001. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131(2012); 38 C.F.R. § 3.303 (2017). “To establish a right to compensation for a present disability, a Veteran must show: “(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”—the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also 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. 439, 448 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 § C.F.R. 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The first element of Shedden is established for this claim because the record clearly demonstrates that the Veteran has a chronic sleep apnea disability. The dispositive question is whether the Veteran’s service connected rhinitis and sinusitis proximately caused or aggravated his current sleep apnea disorder. Here the board finds the preponderance of the evidence to be against the Veteran’s claim. Entitlement to service connection for sleep apnea disorder, to include as secondary to service connected rhinitis with sinusitis The Veteran’s service treatment records (STRs) reveal that the Veteran no findings indicative of sleep apnea during his entrance and separation examinations from service. Private treatment records reveal that the Veteran underwent sleep studies in March 2013 and July 2016. The examiner diagnosed the Veteran will sleep apnea, but did not opine as to the etiology of his disorder. In a November 2013 VA sleep apnea C&P examination, the examiner diagnosed the Veteran with obstructive sleep apnea. During the examination, the Veteran reported that his service connected rhinitis with sinusitis disorder proximately caused or aggravated his obstructive sleep apnea disorder. The examiner disagreed and explained that the Veteran’s sleep apnea disorder is caused by the relaxation or external compression of his oropharynx during sleep, but is not caused by sinus or nasopharynx pathology, which he explained is at a different level anatomically. The examiner also noted that the Veteran’s weight at his separation examination was 192 lbs. He explained that the Veteran’s current weight increase of 30 lbs. to 222 lbs. caused or aggravated the Veteran’s obstructive sleep apnea. The examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran’s sleep apnea was proximately due to or the result of the Veteran’s service connected nasal condition. The foregoing summary of the treatment record for sleep apnea disorder and the explanation by the examiner offer no possibility for service connection. The Veteran has not displayed that his sleep apnea was connected to his time in service, nor has the evidence displayed that his rhinitis with sinusitis disorder proximately caused or aggravated his sleep apnea. Regarding direct service connection, the Veteran’s STR’s do not document any complaints, diagnosis, or treatment for sleep apnea in-service nor do they indicate that his service connected nasal disorders in-service resulted in any reported sleep issues for the Veteran. As noted above the VA examiner diagnosed that the etiology of the Veteran’s sleep apnea was not connected to his to his time in service nor was it proximately caused by his service connected rhinitis or sinusitis. The examiner explained that sleep apnea is caused by the relaxation or external compression of his oropharynx during sleep, but is not caused by sinus or nasopharynx pathology. As such, service connection on a direct basis for the Veteran’s sleep apnea disorder is not warranted. Regarding secondary service connection, the examiner explained that the Veteran’s despite the Veteran’s assertions that his service connected nasal disorders proximately caused his sleep apnea, he diagnosed the Veteran’s substantial weight gain of 30 lbs. as what caused or aggravated the Veteran’s sleep apnea. The Board also reviewed and carefully considered the Veteran’s lay statements that his sleep apnea was connected to his time in-service as evidenced from his July 2016 Form 9 submission and statements by his accredited representative. This evidence has assisted the Board in better understanding the nature and development of the Veteran’s disorder and its effect. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a sleep apnea disorder, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2018). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel