Citation Nr: 21004397 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-21 722 DATE: January 27, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that sleep apnea is etiologically related to the Veteran’s active duty service or service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1958 to October 1977. The matter comes before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A videoconference hearing before the undersigned Veterans Law Judge was held in June 2018. The hearing transcript has been associated with the claims file. The matter was previously remanded by the Board in September 2018, June 2020, and October 2020 for additional development and has now returned for further appellate review. Service connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Entitlement to service connection for sleep apnea The Veteran is seeking service connection for sleep apnea which he has contended is etiologically related to his active duty military service, to include as due to nasal trauma received while on active duty service, chronic tonsillitis and sinusitis, and service-connected asbestosis with chronic obstructive pulmonary disease. A review of the Veteran’s service treatment records reveal that the Veteran did not seek or receive treatment for sleep apnea while on active duty service. VA and private treatment records confirm that the Veteran has a diagnosis of obstructive sleep apnea. Accordingly, the Board finds that the Veteran has a present disability for VA purposes. The Veteran received VA examinations regarding the nature and etiology of his claimed sleep apnea in August 2019, June 2020, and November 2020. The August 2019 VA examiner opined the following: that the Veteran’s diagnosed sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness; that the condition is less likely than not proximately due to or the result of the Veteran’s service connected asbestosis of the lungs with COPD; and that the “literature does not support that a nasal fracture (whatever the classification), sinusitis and tonsillitis contribute to the development of sleep apnea.” The examination was found to be inadequate in the June 2020 Board remand decision, however, as the opinion did not adequately address whether the Veteran’s in-service nasal injury or tonsil abnormality are upper airway abnormalities and if they are related to sleep apnea. The Veteran then received another VA examination in June 2020, pursuant to the June 2020 Board remand decision. The examiner opined that “the etiology of Veteran’s sleep apnea is multifactorial as is often seen with this condition. It is not related to and there is no pathophysiology or causative effect of 1965 recurrent tonsillitis/slightly enlarged right tonsil, or post-service history of bleeding nose while boxing/nasal injury. Veteran does not have a service related upper airway abnormality that is at least as likely as not related to the sleep apnea.” However, as noted in the October 2020 Board decision, the June 2020 examination was inadequate because the examiner stated that the Veteran did not have chronic tonsillitis and failed to provide an explanation for this finding. Accordingly, the Board remanded the matter for another VA examination. In November 2020, the Veteran received another VA examination. The examiner opined that it is less likely than not that the Veteran’s “diagnosed OSA was caused by or aggravated beyond it’s natural progression by the service-connected asbestosis, recurrent tonsillitis, slightly enlarged tonsil, or service history of bleeding nose while boxing in 1959.” By way of rationale the examiner stated “[o]bstructive sleep apnea occurs due to passive collapse of the oro - and or nasopharynx during inspiration while asleep. It is caused by anatomical abnormalities, redundant tissue in the soft palate, enlarged tonsils or uvula that block the airway, low soft palate, large or posteriorly located tongue), as well as neuromuscular disorders. The clinical risk factors for development of sleep apnea include older age, male gender, obesity, craniofacial abnormalities.” The examiner also stated that “[c]urrent medical literature does not support that a nasal fracture, sinusitis, tonsillitis and asbestosis as causes for development of obstructive sleep apnea.” As this opinion addressed all of the Veteran’s relevant medical records, theories of entitlement, and relevant medical research, the Board finds this opinion to be highly probative and adequate for purposes of determining entitlement to service connection for sleep apnea. The record contains a May 2015 letter from the Veteran’s private treatment provider wherein the provider stated that the Veteran’s nasal injury, chronic sinusitis, chronic tonsillitis, chronic snoring, and sleep related difficulties were further complicated by his sleep apnea. The provider, however, did not provide an opinion regarding whether the Veteran’s sleep apnea was at least as likely as not caused by or incurred in active duty service, nor whether the condition was at least as likely as not aggravated by the Veteran’s in-service injury or illnesses. There is also no indication that the Veteran’s private treatment provider had at the time of the letter reviewed the Veteran’s claims file or service treatment records. Accordingly, the Board finds this letter to be less probative than the aforementioned medical opinions by VA examiners. As the record does not include other competent evidence demonstrating that the Veteran’s disabilities were incurred in or due to his active duty. The only competent and probative opinions of record are those of the November 2020 VA examiner, which are negative to the Veteran’s claims. To the extent that the Veteran asserts that his disabilities were incurred in or due to his active duty, the Board finds his lay assertions as to the presence of lay observable symptoms (for example, pain) are considered competent evidence. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render etiological opinions, especially in the presence of other possibilities (i.e., post-service occupation, aging). Accordingly, his assertions on such matters are not competent evidence because such questions require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for sleep apnea is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.