Citation Nr: 19110760 Decision Date: 02/12/19 Archive Date: 02/11/19 DOCKET NO. 13-26 382 DATE: February 12, 2019 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran’s currently diagnosed sleep apnea was not caused or aggravated by his service-connected PTSD and is not etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for sleep apnea, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from June 1995 to December 1995 (as well as several other periods), and active duty from October 2003 to February 2005. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) In a May 2006 memorandum, the VA determined that the Veteran’s service treatment records (STRs) were unavailable. In a case in which a veteran’s service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist him in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 (a) where it is demonstrated that a service-connected disorder has caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for PTSD. In a November 2001 in-service medical examination, the Veteran reported that he did not have frequent trouble sleeping. In assessments from April 2005 to July 2006, the Veteran noted various average hours of sleep per day, ranging from 4 to 8 hours. The Veteran also reported waking up in a panic in some assessments and stated that he woke up multiple times per night in in July 2006 assessment. In a June 2009 treatment note, the Veteran requested a sleep study due to symptoms of sleep apnea. In an August 2010 PTSD examination, the Veteran reported difficulty sleeping more than about 5 hours per night. In July 2014, the Veteran was afforded a VA examination. The clinician noted a diagnosis for sleep apnea per a polysomnogram in August 2009. The examiner noted that the predominance of medical literature does not suggest that sleep apnea is caused by PTSD. The examiner noted that sleep apnea is a related to a mechanical airway obstruction and not due to a neuropsychic or neuro behavioral mechanism. In September 2015, the Veteran was afforded a VA examination. The clinician noted that a recently performed sleep study was not indicative of sleep apnea. The clinician noted the Veteran’s responses in post deployment health assessments in which he denied feeling tired and denied difficulty breathing. The examiner acknowledged a diagnosis for sleep apnea resulting from an August 2009 polysomnogram. In April 2016, the Veteran was afforded another VA examination. The clinician noted a diagnosis for sleep apnea from August 2009 to September 2015. The examiner noted that there was no longer a diagnosis for sleep apnea. The clinician noted that the Veteran’s diagnosis for mild sleep apnea in August 2009 was not due to his active service and reasoned that the Veteran did not have a diagnosis for sleep apnea until four years after service separation. The clinician also reported that the Veteran’s diagnosed sleep apnea (for the periods from 2009 to 2014) is not caused or aggravated by PTSD. The examiner opined that the Veteran’s obstructive sleep apnea was due to a mechanical process and also stated that the Veteran did not have a diagnosis for sleep apnea at the time of the examination. In October 2017, a VA examiner was asked to comment on Dr. Hassan Jabbour’s comments regarding the Veteran’s sleep apnea. The examiner reported that Dr. Jabbour’s comments could not be located in the file and was therefore unable to provide the requested opinion. The Board notes that there have been repeated attempts to obtain Dr. Jabbour’s comments from the Veteran with no success. More recently, the Veteran did not respond to VA’s request that he provide a release for Dr. Jabbour’s records. As noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no medical evidence demonstrating that the Veteran has a diagnosis of sleep apnea since September 2015. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (service connection may be granted if a disability existed at the time a claim for VA disability compensation was filed or at any time during the pendency of the claim, even if the disability resolves prior to the adjudication of the claim). The Board notes that the Veteran did have a diagnosis for sleep apnea from August 2009 to September 2015. However, the Veteran’s sleep apnea has not been connected to his service or to his service-connected PTSD for this period. The Board has considered the Veteran’s assertions that his sleep apnea is caused by his military service or by his service-connected PTSD. The Veteran is not competent, however, to offer an opinion as to the etiology of this type of condition due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A preponderance of the evidence is against a finding that the Veteran’s sleep apnea originated during service or was caused or aggravated by his service-connected PTSD. The Veteran was first seen for his sleep apnea four years after service separation, and there is no competent medical evidence that the Veteran’s sleep apnea began in or as a result of service. There is also no competent medical evidence that the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. The July 2014 examiner noted that the Veteran’s sleep apnea was due to a mechanical airway obstruction and not related to the Veteran’s PTSD. The April 2016 examiner noted that the Veteran’s diagnosed sleep apnea (for the periods from 2009 to 2014) is not due to his PTSD. The examiner again noted the Veteran’s obstructive sleep apnea was due to a mechanical process. Therefore, service connection is not warranted and the claim is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Wozniak, Joshua