Citation Nr: 20002245 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 16-18 113 DATE: January 10, 2020 ORDER Service connection for a left hip condition to include as secondary to service-connected disability is denied. Service connection for a right hip condition to include as secondary to service-connected disability is denied. Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s left hip condition is related to active service or is otherwise due to or aggravated by a service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran’s right hip condition is related to active service or is otherwise due to or aggravated by a service-connected disability. 3. The preponderance of the evidence is against finding that OSA is related to active service or is otherwise due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip condition, to include as secondary to service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right hip condition, to include as secondary to service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for OSA, to include as secondary to service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1988 to July 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and August 2014 rating decisions. The Board remanded the claims in April 2019 to obtain a medical opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disability. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Left and right hip conditions The Veteran contends that he has a disability of both the left and right hip that is due to his service-connected ankle and back conditions. [Service connection is in effect for left ankle impingement with degenerative arthritis and lumbar strain.] VA medical records show the Veteran was diagnosed with bilateral degenerative joint disease of the hip in January 2013. In August 2019, the Veteran underwent a VA examination in order to determine the etiology of this disability, specifically, whether the Veteran’s hip condition was connected to any previously service-connected conditions. The examiner found that the claimed bilateral hip conditions are less likely than not proximately due to or aggravated beyond its natural progression, or the result of the Veteran’s other service-connected conditions. Specifically, the examiner noted that the Veteran’s current orthopedic conditions would prevent the Veteran from participating in high impact activities that would cause additional stress to the hips. The Veteran submitted an October 2014 private medical opinion which stated that there was “a chance ‘at least likely’” the Veteran’s hip conditions could have developed as a result of the Veteran’s knee and ankle conditions over time. The Board finds this opinion to not hold any probative value as it is conclusory and uses the wrong standard when assessing service connection. This opinion simply states that there was a chance that it was at least as likely as not that the Veteran’s hip condition was related to his already service-connected knee and ankle conditions but offers no explanation as to how he came to this conclusion. Further, the opinion states that there “is a chance ‘at least likely’” regarding the connection of the Veteran’s hip condition and his service-connected disabilities. However, this is not the proper standard. Therefore, this opinion does not hold any probative weight when assessing the Veteran’s claim. The Board acknowledges the Veteran’s own assertions in support of his claim. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiologies in this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, neither the Veteran nor his representative has presented or identified any additional medical opinion or other competent evidence that supports the Veteran’s claim. Therefore, the Board finds that the preponderance of the evidence is against the claim on both a direct and secondary basis. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). OSA The Veteran contends that he has OSA which is a result of his service-connected posttraumatic stress disorder (PTSD). The Veteran underwent a sleep study in May 2014 and was subsequently diagnosed with OSA. Therefore, the only issue remaining is whether the Veteran’s OSA is proximately due to or has been aggravated by a service-connected condition. In August 2019 the Veteran underwent a VA examination to determine if his OSA was proximately due to or aggravated by any of the Veteran’s service-connected conditions, including PTSD. The examiner found that it was less likely than not that the Veteran’s OSA was proximately due to, exacerbated by, aggravated beyond its natural progression, or the result of any of the Veteran’s service-connected disabilities. Further, the examiner stated that the Veteran’s OSA is the result of an anatomical blockage of the upper airway due to a large body habitus. This follows with the Veteran’s private medical records that show, upon being diagnosed with OSA in May 2014, the Veteran’s recommended treatment was weight loss. Lastly, this was also confirmed in a June 2014 VA examination where the examiner found no connection between the Veteran’s OSA and his service-connected PTSD, but rather the OSA was due to being overweight. Service connection may also be granted on a direct basis; however, the evidence does not demonstrate that the Veteran’s sleep apnea is directly related to his military service. The Veteran’s STRs are silent for complaints, treatment, or diagnosis of any sleep apnea. In addition, there was no diagnosis for sleep apnea for many years after service. The record also contains no medical evidence establishing a medical nexus between the Veteran’s sleep apnea and his active duty service. Thus, there is no basis to find that the Veteran’s sleep apnea is related to his military service. Therefore, the Board finds that the preponderance of the evidence is against the claim on both a direct and secondary basis. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.