Citation Nr: 21074621 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-05 536A DATE: December 15, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected diabetes mellitus, type II, is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that the Veteran's OSA was caused by or due to an in-service disease, event, or injury, to include as secondary to his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to service-connected diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned Veterans Law Judge at a Virtual Board hearing. A transcript of the hearing has been associated with the file. 1. Entitlement to service connection for OSA, to include as secondary to service-connected diabetes mellitus, type II Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Service connection is also warranted 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). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran has a current diagnosis of OSA per the November 2016 VA examination. As such, the first element of service connection has been met. He is currently service connected for diabetes mellitus, type II. Therefore, the second element for secondary service connection has been met. As the first and second elements of secondary service connection have been met, this appeal turns on whether there is a medical nexus between his current diagnosis and his service, to include his service-connected diabetes mellitus, type II. During November 2016 VA examination, the Veteran reported OSA started in 2002. The Veteran reported that he has used the CPAP machine for 15 years. The examiner indicated that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected diabetes. The examiner reasoned that the Veteran's sleep apnea is a stand-alone condition. He noted that the Veteran's diabetes was under control and he was not obese. The examiner noted that the Veteran had sleep apnea for 15 years and diabetes about 10 to 12 years. The examiner indicated that he was also able to determine a baseline level of severity. He noted that the baseline level of severity was established by sleep study in 2002, which found severe sleep apnea. The examiner notes that the current severity is not greater than the baseline as it was initially severe and is now well treated with use of CPAP. The examiner indicated that based on this information, the Veteran's sleep apnea was less likely than not aggravated beyond its natural progression by the Veteran's Type II diabetes mellitus. In a September 2021 statement, the Veteran's former primary care VA physician, Dr. L.J.K. states that during his time of treating the Veteran he was diagnosed with both OSA and DM type II in 2013. He stated that the extensive research that was initiated in 2008 and continues to this day shows that diabetes mellitus is a cause of OSA and vice versa. The Board finds that although the Veteran's former VA primary care physician provided a positive nexus, the November 2016 VA examination report is the most probative evidence of record, because it is based on a review of the Veteran's medical history, as well as the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. Indeed, the September 2021 statement from Dr. L.J.K. lacks adequate rationale as to the etiology of the Veteran's OSA. Further, Dr. L.J.K. appears to suggest the Veteran was diagnosed with OSA and diabetes mellitus at the same time in 2013. The Board observes that private treatment reports show, and the Veteran also reports, that he was diagnosed with OSA in 2002. Regarding direct service connection, there is no indication that the Veteran's OSA began during service. His service treatment records are negative for any complaints or diagnosis of problems sleeping or breathing issues. He has reported that he began having what he believed were sleep apnea symptoms after separation. According to the Veteran's lay statements made to the 2016 examiner, he stated that his OSA began in 2002. VA treatment records include a February 2014 evaluation that documents the reason for the Veteran's sleep apnea is because of the size of his tongue and large tonsils. In March 2021 statements from the Veteran's sister and brother, they both indicated that the Veteran was experiencing loud snoring when he returned from active duty. Although the Veteran believes his OSA is related to his military service, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury, event, or disease occurred that led to his OSA; or that the current OSA is secondary to service-connected diabetes mellitus, type II. Further, he is not competent to opine that his current OSA was directly due to service or secondary to a service-connected disability. As such, his statements to that effect are afforded little probative value. In sum, the most probative evidence of record indicates that the Veteran's current OSA is not etiologically related to service or secondary to service-connected diabetes mellitus, type II. With no adequate, probative evidence to the contrary, the Board finds that service connection for OSA is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.