Citation Nr: 20005779 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 14-31 686 DATE: January 23, 2020 ORDER Service connection for obstructive sleep apnea, to include as secondary to hypertension and/or service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The competent evidence of record does not reasonably support a finding that the Veteran’s sleep apnea had its onset in service, is otherwise related to service, or is caused or aggravated by service-connected PTSD; hypertension is not a service-connected disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to hypertension and/or service-connected PTSD, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1968. A hearing was held before the undersigned Veterans Law Judge in November 2017. A transcript is of record. At the hearing, the Veteran sought, and was granted a 90-day abeyance period for the submission of additional evidence. That period lapsed, and no additional evidence was received. In March 2018, the Board determined that new and material evidence had been received to reopen the claim for entitlement to service connection for sleep apnea and remanded the underlying service connection claim for additional development. 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, 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). Secondary service connection is also warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for obstructive sleep apnea, to include as secondary to hypertension and/or service-connected PTSD The Veteran contends he has obstructive sleep apnea which is related to his military service or in the alternative, is caused or aggravated by his hypertension and/or service-connected PTSD. The Veteran’s VA treatment records confirm he has a current diagnosis of sleep apnea. However, his service treatment records (STRs) are silent for any signs, symptoms, findings or diagnosis of obstructive sleep apnea. Instead, at the November 2017 Board hearing, the Veteran testified to having heavy snoring in service, which he described as “almost like you stop breathing”. In August 2019, a VA examination and medical opinion was obtained. After examining the Veteran and reviewing his claims file, the VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by his service. In support of that opinion, the examiner highlighted that the Veteran’s sleep apnea was diagnosed approximately 20 years ago and that he separated from active duty service approximately 50 years ago; this meant there was a 30-year gap between his active duty service and diagnosis of sleep apnea. The examiner further noted that the Veteran’s STRs were silent for any signs or symptoms of sleep apnea. The examiner also considered the Veteran’s statements of heavy snoring during service but found that there was no objective evidence of sleep apnea until many years following his service. See August 2019 VA Medical Opinion. The Board gives probative weight to the August 2019 VA examiner’s opinion as it was provided by a physician, who is competent to provide it, and was based on a thorough review of the Veteran’s claims file as well as a physical examination of the Veteran. It also contains an adequate explanation for the rationale of that opinion. Accordingly, it is not shown that the Veteran’s obstructive sleep apnea began during service or is at least as likely as not related to an in-service injury, event, or disease. As discussed above, the Veteran’s STRs are silent for any findings or diagnoses related to sleep apnea and while the Veteran reported heavy snoring during service, such symptoms were considered by the August 2019 VA examiner and found to be not supportive of a finding that his sleep apnea had its onset in service or was caused by his active duty service. In addition to a direct theory of entitlement, the Veteran also contends that his sleep apnea may also be related to hypertension or his service-connected PTSD. At the outset, the Board notes that the Veteran has not established service connection for hypertension. Therefore, service connection based on a secondary causation theory on this basis cannot be established as a matter of law. As for the Veteran’s claim that his obstructive sleep apnea may be related to his service-connected PTSD, a medical opinion was obtained in August 2019 as well. In the medical opinion, the examiner thoroughly addressed the etiology of sleep apnea as a disease which occurs when obstruction of the upper airways during sleep causes periods of apnea. After some further discussion regarding the impact of PTSD symptoms on sleep apnea, the examiner concluded there was likely an association between obstructive sleep apnea and PTSD in that there was evidence that obstructive sleep apnea caused or aggravated PTSD. However, there was no evidence that PTSD caused or aggravated obstructive sleep apnea and, therefore, the examiner concluded it was less likely than not that the Veteran’s obstructive sleep apnea was caused or aggravated by his PTSD. In support of her opinion, the August 2019 VA examiner cited to several medical studies and thoroughly discussed the impact obstructive sleep apnea could have on PTSD symptoms while explaining the rationale for PTSD not having the same impact on obstructive sleep apnea. Given its grounding in the medical evidence in this case, the VA medical expert’s opinion is found to be the most probative evidence in this case and therefore, is afforded the greatest weight. Consideration has also been given to the Veteran’s assertion that his sleep apnea is related to his service-connected PTSD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the nature and etiology of sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In conclusion, the Board finds that there is no probative evidence to warrant service connection for obstructive sleep apnea. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. Service connection for sleep apnea is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.