Citation Nr: 21004214 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-08 628 DATE: January 26, 2021 ORDER Entitlement to service connection for sleep apnea secondary to posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Sleep apnea was not caused or aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea due to service-connected PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1970 and from September 1970 to August 1973. He was honorably discharged from his first period of active duty; but was discharged under “other than honorable conditions” from his second period of service. An August 2004 Administrative Decision confirmed that the discharge from the second period of service was under other than honorable conditions and a bar to VA benefits. He is therefore barred from VA benefits for any disability incurred during that period; however, the Board will still consider the Veteran’s claims for service connection with regard to his honorable period of active service. See 38 U.S.C. § 101(18); 38C.F.R. §3.12(a). This matter comes to the Board of Veterans’ Appeals(Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of that proceeding is of record. In November 2020, VA informed the Veteran that the VLJ who presided over the prior hearing was no longer a Member of the Board and informed the Veteran he could elect another hearing if he desired; if he did not respond within 30 days, however, the Board would assume he did not want another hearing. More than 30 days have since past and the Veteran did not respond; therefore, the Board finds an additional hearing is not warranted. 1. Entitlement to service connection for obstructive sleep apnea secondary to posttraumatic stress disorder The Veteran seeks entitlement to service connection for a sleep apnea secondary to service connected PTSD, and has not contended that the condition onset or was caused by active service. See December 2019 Board Hearing Transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation 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 or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for sleep apnea as secondary to PTSD is not warranted as the more probative medical evidence fails to establish an etiological link between the service-connected PTSD and sleep apnea. A September 2016 VA examination report shows that the Veteran was diagnosed with sleep apnea via sleep study in May 2008. The Veteran reported that 10 years prior he was snoring and was found to have sleep apnea which required the use of a C-PAP. The examiner opined that the Veteran’s sleep apnea was less likely than not caused by service connected PTSD. The examiner noted that after a review of the Veteran’s medical history, physical exam, medical record review, and medical literature review, the sleep apnea was caused by anatomically reduced upper airway size due to excess surrounding soft tissue or a highly complaint airway, and PTSD or alcohol use was not mentioned as one of the etiology of sleep apnea. A June 2020 VA examination report shows that the examiner reviewed the claimed file and concluded that it was less likely than not, that the Veteran’s sleep apnea was caused or aggravated by service connected PTSD. The examiner noted that the earliest evidence of PTSD was noted in 2008 which was many years after separation from service. Additionally, the examiner noted that there was no medical evidence contained in the claims file showed that the sleep apnea was caused by PTSD. The examiner noted that PTSD could affect sleep and lead to nightmares and insomnia, but those affects were different from sleep apnea. The examiner remarked that sleep apnea was not a mental illness, but was an obstruction in the upper airway during sleep which was treated with CPAP and not psychiatric medications. The examiner also remarked that there was no mention of sleep apnea being aggravated by PTSD as sleep apnea was treated and controlled by CPAP machine. The Board finds that the most probative evidence of record demonstrates that the sleep apnea is not caused or aggravated by the service-connected PTSD. The June 2020 VA opinion was provided upon examination and a review of the relevant medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Additionally, the examiner provided supporting explanation for the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that a mere medical conclusion is insufficient to permit the Board to make an informed decision regarding the probative value of that opinion). The Board thus accords significant probative value to this opinion. To the extent that the Veteran has related his current sleep apnea to his PTSD, he is not competent to provide such etiological opinion. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). This is because the determining the etiology, including causation and aggravation, of an internal medical condition such as sleep apnea, is a complex medical determination for which the Veteran is not qualified. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). As such, the criteria for secondary service connection have not been met and the Veteran’s claim is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.