Citation Nr: 20009986 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-24 876 DATE: February 6, 2020 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT Sleep apnea was not present during the Veteran’s active duty and the most probative evidence indicates that the Veteran’s current sleep apnea is not causally related to his active service, nor is it caused or aggravated by a service-connected disability, to include diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS FOR BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to October 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for sleep apnea. In November 2017, VA received the Veteran’s Notice of Disagreement. Following the issuance of a Statement of the Case in June 2019, the Veteran perfected a timely appeal via his submission of a VA Form 9 in August 2019. 1. Entitlement to service connection for sleep apnea. In general, in order to establish service connection 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 in or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of another service-connected disability. 38 C.F.R. § 3.310(a). Establishing secondary service connection requires: (1) competent evidence of a current disability; (2) an already service-connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). As a preliminary matter, the Board notes that there is no indication, nor is it contended, that sleep apnea developed in service or is otherwise causally related to an in-service injury or disease. The Veteran’s service treatment records are negative for pertinent complaints or observations. His October 1969 military separation medical examination was normal in all pertinent respects. On a report of medical history completed at the time of separation, the Veteran denied having or ever having had frequent trouble sleeping. He was not diagnosed as having sleep apnea until 2012, nearly 43 years after service separation and the record contains no indication of a link between the Veteran’s current sleep apnea and an in-service disease or injury. Rather, the Veteran asserts that his sleep apnea was caused by his service-connected diabetes mellitus. In pertinent part, the post-service clinical record on appeal shows that the Veteran was diagnosed as having mild to moderate obstructive sleep apnea (OSA) in August 2012. He was provided with a CPAP machine and remains under treatment for sleep apnea. The clinical records of treatment for OSA contain no indication that it is causally related to or aggravated by a service-connected disability, to include diabetes mellitus. In August 2017, the Veteran submitted a claim of service connection for sleep apnea, which he contended was due to his service-connected diabetes mellitus. In support of his contentions, he cited to a Wikipedia article which notes that sleep apnea may increase the risk of diabetes and that there is evidence that the risk of diabetes among those with moderate or severe sleep apnea is higher. The Veteran also referenced a study, “Risk of Obstructive Sleep Apnea in Patients with Type 2 Diabetes Mellitus” which showed that nearly half of adults with type 2 diabetes mellitus may be at high risk for OSA. The Veteran contended that “these references and many more similar statements made by medical professionals on the internet…establish proximate cause.” In a December 2017 statement, the Veteran indicated that for each of his claimed disabilities, including sleep apnea, “a medical person, whether from VA, a VA contractor, or the medical community has assured me that each of my conditions is in fact either a result of or is actively being aggravated by my service connected Diabetes mellitus Type 2.” The Veteran also referenced an April 2010 Board decision in another Veteran’s case in which a physician determined that that Veteran’s sleep apnea was due to diabetes mellitus. In connection with his claim, the Veteran was afforded a VA medical examination in April 2019. He reported that his sleep apnea symptoms started somewhere between 2011 and 2012 when he noticed excessive daytime sleepiness, tiredness and lethargy after waking, and sleepiness while driving. He was evaluated in a sleep study in August 2012 and was diagnosed with OSA at that time. He had been prescribed a CPAP machine and his sleep apnea had been well managed since that time but for dry mouth due to the use of the mask. After examining the Veteran and reviewing the record, the examiner concluded that it was less likely than not that the Veteran’s sleep apnea was aggravated by his service-connected diabetes mellitus. The examiner explained that although there may be an association between sleep apnea and diabetes mellitus, there was no evidence of aggravation as the Veteran’s sleep apnea was well managed without any complications. In a May 2019 Addendum, the examiner provided a clarifying opinion indicating that there was no credible medical evidence that the Veteran’s OSA was caused or aggravated by his service-connected diabetes mellitus. The examiner explained that OSA was an anatomical condition in which the structures of the upper airway relax/prolapse during sleep. This resulted in a temporary occlusion of the airway. After reviewing the record, the Board finds that the preponderance of the evidence is against the claim. As set forth above, the record on appeal contains no indication, nor has the Veteran contended, that his sleep apnea was present during active duty or that it is otherwise causally related to an in-service disease or injury. With respect to the question of secondary service connection, the Board assigns the April and May 2019 medical opinions great probative weight. The opinions were based on a clinical examination of the Veteran as well as a review of his claims folder. The examiner also provided a rationale for the opinions rendered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has considered the Veteran’s statements to the effect that he has been assured by medical personnel that his sleep apnea is a result of or is actively aggravated by his service-connected diabetes mellitus type II. Although the Veteran is competent to relay what a medical professional told him, the clinical evidence contains no indication of a causal link between his service-connected diabetes mellitus and his sleep apnea. The Board assigns more weight to the clinical evidence of record, particularly the April and May 2019 medical opinions, than to the Veteran’s statements relating what a medical professional told him, filtered as they are through a layperson’s sensibilities. Cf. Warren v. Brown, 6 Vet. App. 4 (1993). The Board has also considered the Wikipedia article and medical study cited by the Veteran, as well as his contentions to the effect that “these references and many more similar statements made by medical professionals on the internet…establish proximate cause.” Although the Wikipedia article and medical study suggest an association between diabetes mellitus and sleep apnea, they do not contain any indication of a causal connection. The Board finds that the examiner’s opinions are more probative as to the question of nexus than to the studies cited by the Veteran. The examiner based the opinions on the Veteran’s particular history and, although the examiner acknowledged that there may be an association between sleep apnea and diabetes mellitus, the examiner explained that there was no medical basis to establish causation or aggravation. With respect to the Veteran’s assertions that there are similar statements made by medical professionals on the internet, such conclusory generalized statements do not provide a basis upon which to grant the claim. Cf. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Additionally, the Board has considered the April 2010 Board decision referenced by the Veteran. However, Board decisions are not precedential; rather, they are binding only with regard to the specific case addressed in each decision. 38 C.F.R. § 20.1303; Hillyard v. Derwinski, 1 Vet. App. 349, 351 (1991). As noted, although that decision granted service connection for sleep apnea secondary to diabetes mellitus, it was based on a medical opinion specific to that particular Veteran. As reflected above, in this case, the April 2019 VA examiner concluded that the Veteran’s current sleep apnea is less likely than not causally related to his service-connected diabetes mellitus. Thus, that fact-specific Board decision cannot be assigned significant probative value with respect to the claim at hand. For the foregoing reasons, the Board finds that the most probative evidence establishes that the Veteran’s OSA was not incurred in or is otherwise causally related to his active service, nor is it causally related to or aggravated by a service-connected disability, to include diabetes mellitus. Accordingly, the Board finds that, as the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven Grodnitzky 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.