Citation Nr: 21006001 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-01 084 DATE: February 3, 2021 ORDER Entitlement to service connection for a sleep condition, to include as secondary to PTSD and service-connected diabetes mellitus, is denied. FINDING OF FACT The preponderance of the evidence is against that the Veteran’s sleep condition had its onset in service or is otherwise related to service, including as secondary to PTSD and the Veteran’s service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for sleep condition, to include as secondary to PTSD and service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 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 February 1953 to May 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. 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 caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). 1. Sleep Condition The Veteran contends that he developed obstructive sleep apnea (OSA) as a result of his active service, including as due to PTSD and his service-connected diabetes mellitus. See July 2016 Statement in Support of Claim from October 2019. Direct Service Connection Service connection may be granted on a direct basis, but the preponderance of the evidence is against finding that the Veteran’s OSA is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In a September 2019 VA examination for sleep apnea, the Veteran was diagnosed with OSA. Thus, the first element of service connection has been met. Next, the Veteran’s service treatment records (STRs) are completely devoid of any treatment for or complaint of trouble sleeping. Notably, the Veteran’s first diagnosed of OSA was in September 2019, after a sleep study was performed. See September 2019 VA Sleep MIT Note. Thus, the Board finds the Veteran does not meet the second element of direct service connection. The Board also notes that the record is devoid of any evidence that satisfies the third element of service connection. In fact, the Veteran was examined in September 2019, and a September 2019 VA medical opinion reflects that an examiner reported that the Veteran’s OSA was not related to service because there was no evidence of any sleep problems or complaints in his STRs, and the lay statement submitted from the Veteran’s wife stated she witnessed the Veteran snoring for the past ten years. See September 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ). In addition, in a December 2020 VA medical opinion, the VA examiner noted that the Veteran’s OSA was not related to service because the STRs are silent for complaints of or objective clinical diagnosis of any chronic and disabling sleep condition. The examiner reviewed the medical studies submitted by the Veteran and determined that the weight of medical literature supports that OSA is a condition due to the loose floppy tissues of the throat and thus is a biomechanical condition. In addition, the examiner noted that the medical literature does not support that an environment of sleep deprivation affects the tissues of the throat. See December 2020 Medical Opinion DBQ. As to competent lay evidence, the Veteran has not presented such. Rather, the Veteran in his substantive appeal has asserted that his OSA is related to his PTSD and service-connected diabetes mellitus. Given that the second and third elements of service connection have not been satisfied, service connection is not warranted on a direct basis. Secondary Service Connection The Veteran is also seeking entitlement to service connection for a sleep condition, such as OSA, secondary to PTSD and his service-connected diabetes mellitus. As noted above, the first element of secondary service connection is the existence of a present disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Board finds that the first element of secondary service connection has been satisfied, where the Veteran’s sleep study performed in September 2019 confirmed a diagnosis of OSA which was affirmed by the September 2019 VA examiner. See September 2019 VA Sleep MIT Note, September 2019 VA Medical Opinion DBQ. As to the second element of secondary service connection, the Veteran must have at least one service-connected disability. The Board finds the Veteran meets the second element, as he is service connected for diabetes mellitus. Thus, the Veteran meets the second element of secondary service connection. See February 2007 Rating Decision. The Board notes the Veteran is not currently service-connected for PTSD, and, therefore, his claim fails for service connection of a sleep condition based on PTSD. Here, the third element of secondary service connection, a nexus between the current disability and the service-connected disability or disabilities, has not been met. The Board reviewed the VA medical opinions and found their determinations probative that the Veteran’s disability is not related to his service-connected diabetes mellitus. The December 2020 VA examiner opined, based on the evidence of record, that the Veteran’s OSA was less likely than not caused by his service-connected diabetes mellitus, secondary or the result of his service-connected diabetes mellitus, or was aggravated beyond its natural progression by his service-connected diabetes mellitus. In support, the VA examiner based his findings on relevant medical literature which explained that sleep apnea is a biomechanical condition and does not support the Veteran’s contentions that his OSA was caused by sleep deprivation. In addition, “the weight of the medical literature supports that sleep apnea is a condition in which loose, flappy tissues in the throat occlude the passage of air during the relaxation of sleep.” See December 2020 Medical Opinion DBQ. Additionally, the Board acknowledges that the Veteran submitted internet articles, including a general informational article on sleep apnea, diabetes mellitus, and PTSD. However, the Board finds that these articles are unpersuasive, as the Veteran did not present any medical opinion evidence addressing the question of whether his OSA was caused by or aggravated by his service-connected diabetes mellitus in his case. This is so, because while medical treatise evidence can, in some circumstances, constitute competent medical evidence, generic information from a medical journal, treatise, or website is too “general and inconclusive” to establish a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). A medical article or treatise can provide support for a claim but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks, 12 Vet. App. at 316-17. Such is not the case in this appeal. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis, the onset date of such diagnosis, or medical causation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA medical opinions. Additionally, the lack of any records documenting in-service complaints of sleep apnea symptoms coupled with the lack of an etiology opinion undermines the probative value of the Veteran’s contentions. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, the Board notes that roughly forty years passed between the Veteran exiting service and his filing a claim for service connection for this disorder. Without any competent evidence in support of the Veteran’s claim, the Board finds that no medical nexus exists between the Veteran’s OSA and either service or his service-connected diabetes mellitus. Accordingly, the claim is denied, and there is no doubt to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.