Citation Nr: 21076046 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-12 806 DATE: December 22, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea is not secondary to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea due to a service-connected disability 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 in the United States Army from May 1966 to May 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. As an initial matter, the Veteran is currently in receipt of a 100 percent combined evaluation for compensation effective April 4, 2019. In addition, he has been in receipt of special monthly compensation effective July 5, 2012. Entitlement to service connection for sleep apnea The Veteran claims that his sleep apnea is secondary to his service-connected diabetes. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. In any event, there is no basis to find these problems to be related to active service directly more than 52 years ago. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by, a service-connected disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of sleep apnea. See April 2019 VA Examination. The Veteran underwent a VA examination in April 2019. The VA examiner considered the lay statements by the Veteran and opined it was less likely than not that the Veteran's sleep apnea was caused by his service-connected disabilities. He did not offer an opinion as to aggravation. The Board remanded the claim and obtained VA medical opinions in June 2021 and October 2021. The VA examiners opined it was less likely than not that the Veteran's sleep apnea was caused or aggravated by his service-connected disabilities. In contrast, the Veteran submitted a private treatment record in April 2021 which contains a positive nexus opinion from a nurse practitioner. However, although this opinion supports the Veteran's claim, the Board finds the opinion provides very little probative value and afford it little weight in the analysis of the Veteran's claim because it offers only conclusions without supporting data or the essential rationale for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)). Instead, the Board places more weight on the VA opinions of record, as they consistently show that the Veteran's sleep apnea was not caused or aggravated by any of his service-connected disabilities. The Board has also considered the medical treatise information submitted by the Veteran. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, the Board affords it little probative value as it is general in nature and does not provide facts specific to this Veteran and his claim. The Veteran believes his sleep apnea is proximately due to or the result of or aggravated beyond its natural progression by a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2019, October 2021, and June 2021 VA examinations. Therefore, the Board finds that the weight of the evidence is against a finding of service connection for sleep apnea. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. Therefore, entitlement to service connection for sleep apnea is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.