Citation Nr: 20006993 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-28 495 DATE: January 28, 2020 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected Grave’s disease. FINDING OF FACT The Veteran’s current sleep apnea was not caused or aggravated by his service-connected Grave’s disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea due to service-connected disease Grave’s disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from February 1990 to May 1994. In the Veteran’s June 2016 substantive appeal, he requested a hearing before the Board. In February 2019, the Veteran withdrew his request for a hearing; consequently, there remain no outstanding hearing requests of record. 38 C.F.R. § 20.704(e). Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for sleep apnea, to include as secondary to service-connected Grave’s disease The Veteran claims entitlement to service connection for sleep apnea. Specifically, the Veteran contends that his current sleep apnea was caused or aggravated by his service-connected Grave’s disease. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran does have a current diagnosis of obstructive sleep apnea (OSA). The Veteran’s diagnosis of OSA was confirmed in a July 2016 VA sleep apnea Disability Benefits Questionnaire (DBQ). The Veteran does not contend, and the probative evidence of record does not establish, that the Veteran’s OSA was incurred during or caused directly by his active service. The Veteran’s service treatment records are silent for complaints or diagnosis of OSA. A January 1994 report of medical examination, completed just 4 months prior to the Veteran’s completion of active service, is silent for complaints of OSA. Review of the Veteran’s VA and private medical treatment records indicates that the Veteran had surgery for OSA in February 2005, and his history of OSA began at least one year prior. The probative medical evidence does not contain a VA or private medical opinion indicating that the Veteran’s OSA was incurred during or caused by his period of active service. Accordingly, entitlement to service connection on a direct basis is not warranted. See 38 C.F.R. § 3.303. The Veteran contends that his OSA was caused or aggravated by his service-connected Grave’s disease, also claimed as a thyroid condition. The Veteran states that thyroid patients are at a greater risk of sleep apnea. The Veteran also states that he underwent a surgery for OSA in 2005, and that despite his surgery, his OSA has persisted. The Veteran’s OSA was evaluated in July 2016 in a VA sleep apnea DBQ. At examination, the Veteran reported surgery for OSA in 2005, with unsuccessful results. The Veteran reported that he continues to use a continuous positive airway pressure (CPAP) system while he sleeps at night. The examiner noted that the Veteran did not require the use of medication to manage sleep apnea, and that the Veteran’s sleep apnea did not result in functional impact. However, the Veteran’s sleep apnea did manifest in fatigue. Following the examination, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused or aggravated by the Veteran’s service-connected Grave’s disease. The examiner reasoned that although the Veteran’s hypothyroidism can be a risk factor for sleep apnea, the Veteran’s hypothyroidism is currently controlled with replacement therapy. Further, sleep apnea due to hypothyroidism is often reversed when the hypothyroidism is treated, indicating that the Veteran’s OSA was not caused by hypothyroidism. Additionally, the examiner noted that the success rate of surgery to address OSA varies because “OSA usually involves multiple sites of tissue obstruction of the airways.” The Board finds the examiner’s opinion to be thorough and well-reasoned. The July 2016 examiner’s opinion is highly probative evidence against the Veteran’s claim for service connection on a secondary basis. At present, the probative medical evidence of record does not contain a contradicting medical opinion or medical evidence indicating that the Veteran’s OSA was caused or aggravated by his service-connected Grave’s disease. Based on the above discussed medical evidence, the Board finds that entitlement to service connection for OSA, to include as secondary to service-connected Grave’s disease is not warranted. See 38 C.F.R. § 3.310. The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s acquired psychiatric disorder. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, Associate Attorney 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.