Citation Nr: 18156111 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 14-03 141 DATE: December 11, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence does not show that the Veteran’s sleep apnea manifested during or as a result of active duty service, or was caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1980 to August 1983, July 1989 to March 1990, and April 1990 to April 1993. This matter is on appeal from a December 2009 rating decision. In May 2017, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a video conference hearing. The Board previously remanded this case in November 2017 for additional development. As the actions specified in the remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires medical evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for sleep apnea, to include as secondary to PTSD The Veteran seeks entitlement to service connection for sleep apnea, which he contends was incurred in service. The Veteran has also claimed that his sleep apnea may be secondary to service-connected PTSD. As noted above, the first element of service connection requires medical evidence of a present disability. Private treatment records show that the Veteran was diagnosed with mild obstructive sleep apnea following a sleep study in October 2008. Thus, the issue before the Board is whether the Veteran’s sleep apnea is etiologically related to any illness, injury, or event that occurred in service, to include service-connected PTSD. At the May 2017 hearing, the Veteran and his spouse both testified that the Veteran’s symptoms of sleep apnea, including trouble sleeping and interrupted breathing during sleep, began shortly after he returned from serving in Desert Storm in September 1992. The Veteran’s spouse also testified that the Veteran did not have any sleeping problems prior to the Veteran’s military service in Desert Storm. The Board notes that the Veteran’s service treatment records are silent as to complaint, diagnosis, or treatment of sleep apnea or any other sleeping or breathing problems during service. At his February 1993 separation examination, the Veteran denied a history of frequent trouble sleeping. A private medical opinion from Dr. C. dated February 2014 states that the Veteran’s sleep apnea was at least as likely as not incurred in or caused by an in-service injury, event, or illness. The opinion also states that the Veteran’s sleep apnea is at least as likely as not proximately due to or the result of the Veteran’s service-connected PTSD. Dr. C. provided the following rationale: “[I] reviewed case with [the Veteran’s] psychiatrist and reviewed past records showing an obvious sleep disturbance associated with reliving traumatic events.” A sleep apnea disability benefits questionnaire completed by Dr. T. in September 2016 notes that the Veteran’s sleep apnea is at least as likely as not proximately due to or the result of the Veteran’s service connected condition. Dr. T. provided the following rationale: “[A]fter reviewing the records, current [obstructive sleep apnea] (OSA) is directly related to the PTSD with depression. OSA is more common in veterans with PTSD per study so there is a medical link.” Dr. T. did not provide an opinion as to direct service connection for sleep apnea. The Regional Office (RO) obtained guidance from a VA neurologist, Dr. C., in November 2016 which refutes the purported link between obstructive sleep apnea and PTSD. Dr. C., drawing on a number of medical sources, concluded that there is no pathophysiological or causative effect of PTSD on sleep apnea. He determined that OSA is less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. He further opined that OSA was not aggravated beyond its natural progression by an in-service injury, event, or illness, including PTSD. However, the Board notes that this opinion was rendered without examination of the Veteran or review of his medical history or specific facts of his case. In its November 2017 remand, the Board determined that the aforementioned medical opinions are inadequate to use as a basis to decide the Veteran’s claim. First, the February 2014 opinion does not provide an adequate medical rationale as it erroneously relates “sleep disturbance” to the Veteran’s PTSD, but does not discuss whether the Veteran’s sleep apnea relates to his PTSD. The September 2016 opinion is conclusory and not supported by any evidence-based medical rationale. Furthermore, the November 2016 guidance provided a general opinion without an examination of the Veteran or his claims file, and did not consider the issue of direct service connection. Pursuant to the November 2017 Board remand, the Veteran underwent a new VA examination in December 2017. Following examination of the Veteran and a review of his medical history, the VA examiner determined that the Veteran’s sleep apnea is less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that the most common risk factors for obstructive sleep apnea are advancing age, male gender, obesity, and craniofacial and upper airway abnormalities. The examiner acknowledged the Veteran’s and his wife’s statements that he had sleep trouble and breathing problems while sleeping during service, however, he noted that there are many other possible etiologies to explain these symptoms that are not specific to sleep apnea. The examiner noted that the Veteran’s service treatment records do not show symptoms of sleep apnea and that he was not diagnosed until undergoing sleep study in 2008. Between separation in 1993 and diagnosis in 2008, the Veteran’s weight increased by 55 pounds, which is a substantial weight gain. Therefore, the examiner concluded that the Veteran’s sleep apnea is at least as likely as not due to his obesity. The VA examiner also opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. After explaining the pathophysiology of obstructive sleep apnea, the examiner concluded that evidence-based medical literature does not show any pathophysiologic evidence to correlate PTSD as a cause, etiology, and/or aggravating factor of obstructive sleep apnea, or to support that there are any physical or emotional factors from PTSD that would influence the obstruction of the airway to cause obstructive sleep apnea. Following careful review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence weighs against finding that the Veteran’s sleep apnea was incurred in or caused by any in-service injury, illness, or event, to include as secondary to service-connected PTSD. In making this determination, the Board finds the December 2017 VA opinion to be the only probative, competent medical opinion of record regarding the etiology of the Veteran’s sleep apnea. The December 2017 opinion provided a fully articulated conclusion adequately supported by medical rationale and citations to the Veteran’s claims file and medical history. For these reasons, the Board finds the opinion to be the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran’s sleep apnea was incurred in, or otherwise related to, any in-service event, including PTSD. The Board notes that, in a November 2018 post-remand brief, the Veteran’s representative argued that the VA examiner did not adequately assess the Veteran’s sleep apnea. However, the representative did not provide any reasons why he believed the examination was inadequate. The Board notes that there is a presumption of regularity that government officials, including VA medical examiners, have properly discharged their official duties. Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). Clear evidence to the contrary is required to rebut the presumption of regularity. In reviewing the December 2017 examination report and medical opinion, the Board finds no clear evidence that the VA examiner did not conduct the examination in an appropriate manner. Thus, in the absence of clear evidence to the contrary, the representative’s unsupported contentions are insufficient to render the examination inadequate. Finally, the Board acknowledges the Veteran’s sincere belief that his sleep apnea should be service-connected. The Veteran is competent to report on matters observed or within his personal knowledge, and is therefore competent to make statements regarding his symptoms and medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a disorder such as sleep apnea requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether his sleep apnea was incurred in or caused by his military service or whether it is secondary to his PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any opinion by the Veteran regarding the etiology of his sleep apnea is not competent evidence. The Board finds the competent medical opinion of record, provided by a qualified medical professional, to be more probative as to etiology. Accordingly, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for sleep apnea. Because the evidence fails to establish that the Veteran’s sleep apnea was incurred in or caused by military service, to include as secondary to service-connected PTSD, the Veteran’s claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel