Citation Nr: 18160745 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-03 215 DATE: December 27, 2018 ORDER Entitlement to service connection for a sleep apnea, to include as secondary to a service-connected disability, is denied. FINDING OF FACT The Veteran’s sleep apnea was not present in service, was not manifested until many years after service, and is not otherwise related to service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Air Force from November 1965 to September 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran seeks service connection for sleep apnea on a secondary basis. In addition, a claim for direct service connection for sleep apnea was denied in the February 2016 rating on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may otherwise be granted for any disease initially 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). 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. 2009) (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 that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). To establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-517 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Veteran has a current diagnosis of sleep apnea, there are conflicting medical opinions as to whether it is caused or aggravated by his service-connected PTSD. In support of his claim, the Veteran submitted an October 2015 Disabilities Benefits Questionnaire (DBQ) and medical opinion from a private physician. Following review of both past and recent sleep study findings as well as treatment with the CPAP (Continuous Positive Airway Pressure) machine, the physician concluded that the Veteran’s PTSD, in all probability, directly affects and/or aggravates his obstructive sleep apnea, but provided no explanation for his opinion. See medical opinion from T.R. deTar, M.D., dated October 23, 2015. In a December 2015 VA opinion, an examiner confirmed the diagnosis of sleep apnea and found that it was less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected PTSD. This examiner noted that obstructive sleep apnea and PTSD are two are separate and non-related conditions. He then explained that sleep apnea is caused by obstruction of the upper airway and that the Veteran was mildly obese, which was a strong correlating factor for his sleep apnea. Because the Veteran challenged the adequacy of that examination and opinion, the RO requested a supplemental opinion, which was received in November 2016. The examiner reiterated his previous conclusion that the Veteran’s sleep apnea was not aggravated by his PTSD, explained that the medical evidence was insufficient to determine a baseline level of severity, and noted that the Veteran’s sleep apnea had improved with use of the CPAP machine and that this was the normal progression of the disease. Also, clinical records do not show any suggestion that the Veteran’s condition has worsened or that his PTSD symptoms are affecting the natural progression of his sleep apnea. Instead, these records clearly show that the Veteran was using the CPAP machine effectively and that he reported excellent effectiveness of therapy in that he was not snoring and did not witness apnea or morning headaches since starting CPAP therapy. The examiner noted that, even though PTSD can and does interrupt sleep, that does not appear to be the case for the Veteran. The examiner concluded that there has simply not been any permanent aggravation of the Veteran’s sleep apnea condition beyond its natural progress and that he has shown significant improvement since diagnosis and treatment, despite the PTSD. Based on this evidence, the Board finds that the VA opinions are more probative, as they are based upon a complete review of the Veteran’s claims file and set out the most helpful and complete discussion of the medical evidence in concluding that the Veteran does not currently experience sleep apnea related to service or to his service-connected PTSD. When providing rationale for the medical opinion, the VA examiner considered specific medical history, including the Veteran’s longstanding history of alcohol dependence, the course of his sleep apnea symptoms, the private medical opinion results of the clinical evaluation, and the Veteran’s belief that his sleep apnea is caused, or made worse, by his PTSD. That notwithstanding, careful consideration has also been given to the private opinion which, while supportive of the claim, is limited in terms of its ultimate probative value in that makes only a general assertion as to the relationship between the Veteran’s sleep apnea and service-connected PTSD. Unfortunately, the opinion is cursory, and the physician did not reference any clinical data or other evidence to support the conclusion. See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion) and Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of a physician to provide a basis for his or her opinion affects the weight or credibility of the evidence). After weighing all the evidence, the Board finds greater probative value in the VA opinion, and, in light of the other evidence of record, it is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). While the private opinion cannot be ignored or disregarded, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Based on this review, the Board finds that the private opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidentiary record. Absent evidence of a nexus between the claimed condition and any service-connected disability, service connection cannot be granted on a secondary basis. 38 C.F.R. § 3.310; Allen, supra; see also, Wallin, Reiber, supra. The Board is also unable to attribute the Veteran’s sleep apnea to his military service. Service treatment records do not document complaints or findings suggestive of a chronic sleep disorder including complaints of disordered sleep, snoring, shortness of breath, fatigue, excessive daytime sleepiness, or other signs indicative of sleep apnea. At his separation physical in 1969, he specifically denied a history of frequent trouble sleeping. There is also no indication that the Veteran had a need for continued or ongoing medical care due to any sleep problems in the immediate years after his separation from service in 1969. Pertinent complaints do not arise in post-service treatment records until almost 40 years after service ended. The earliest relevant medical evidence is a 2007 VA sleep study which shows he was found to have a obstructive sleep apnea and given a CPAP (Continuous Positive Airway Pressure) machine. See VA Polysomnography Consult dated October 9, 2007. His failure to report any pertinent complaints in the immediate years after service is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. Although not a dispositive factor, the lapse in time between service and post-service medical symptoms may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). There is also no medical opinion linking the sleep apnea to the Veteran’s service military service. The November 2016 VA examiner concluded that sleep apnea was not related to service. See November 2016 VA opinion. The examiner explained that the Veteran’s records were free from complaints of sleep issues until approximately 2007 and that there are no objective records or findings to suggest he had sleep apnea since service. To the extent the Veteran asserts that the sleep apnea is nevertheless etiologically related to service, such an assertion treads into the realm of medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). In any event, the probative value of his belief is outweighed by that of the medical examiner, who clearly does have the education, training and experience to address the etiology of sleep apnea. As the evidence of record fails to establish that the Veteran’s sleep apnea was present in service, and there is no evidence relating it to military service or to service-connected disability, the claim cannot be granted. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant