Citation Nr: 21006322 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-35 376 DATE: February 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected psychiatric disorder is denied. FINDING OF FACT The Veteran’s OSA is not secondary to service-connected disorders and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for OSA due to service or service-connected disorders have not been 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 July 1980 to August 2000. A Board of Veterans’ Appeals (Board) hearing was held in Washington, D.C. in February 2017. A transcript of the hearing is included in the claims file. The Board previously remanded this matter in November 2018 and August 2020 for additional evidentiary development. The case has returned to the Board for appellate review. Entitlement to service connection for OSA to include as secondary to a service-connected psychiatric disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service 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 established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking entitlement to service connection for OSA, to include as secondary to a service-connected psychiatric disorder. Specifically, he asserts that his service-connected specified trauma and stressor related disorder and unspecified depressive disorder causes or aggravates his OSA. In April 2013, the Veteran was diagnosed with OSA. Thus, there is evidence of a current disability. Service connection has been established for specified trauma and stressor related disorder and unspecified depressive disorder. A 30 percent disability rating was assigned, effective February 7, 2013. Thus, there is evidence of a service-connected psychiatric disorder. The remaining question is whether there is a medical nexus or relationship between the Veteran’s currently diagnosed OSA and his service-connected psychiatric disorder or his time in service. The Veteran was afforded VA examinations for his psychiatric disorder in March 2014 and August 2019. Both examiners noted the Veteran’s reported sleep disturbances, and the August 2019 examiner noted chronic sleep impairment as a symptom that actively applies to the Veteran’s psychiatric disorder. The Veteran was afforded a VA examination in August 2019 for his OSA. The August 2019 examiner opined that the Veteran’s OSA is less likely than not due to a service-connected disability and is less likely than not aggravated beyond its natural progression by an acquired psychiatric disorder. The examiner provided the rationale that the Veteran denied trouble sleeping until his 2013 OSA diagnosis. The examiner further provided that the Veteran’s male gender, older age, and body mass index (BMI) are well-defined risk factors for developing OSA and that PTSD is a psychiatric disorder and does not cause the anatomical or physiological changes associated with OSA, namely the recurrent collapse of the pharyngeal airway during sleep. The examiner further provided that there is no scientific evidence supporting the notion that PTSD or any other psychiatric disorder causes OSA. In the August 2020 remand, the Board found this examination to be partly inadequate for the purposes of determining service connection. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board found that the August 2019 opinion failed to address direct service connection, the Veteran’s lay statements, and the aggravation prong of secondary service connection. Pursuant to the August 2020 Board remand, an addendum opinion was obtained in August 2020. The examiner reviewed the claims file and opined that it is less likely as not that the Veteran’s OSA had its onset or is otherwise etiologically related to the Veteran’s military service or a service-connected disability. The examiner provided a rationale for direct service connection that there is no indication in the Veteran’s service treatment records (STRs) of any early symptoms of OSA, such as snoring, during his military service. The examiner clarified that the history of sleep impairment in the March 2014 and August 2019 VA examinations does not imply the presence of OSA. The August 2020 examiner also provided a rationale for secondary service connection, stating that the nature of OSA is more anatomical and pronounced by obesity. The examiner noted that a detailed review of medical literature shows that it is not generally accepted that OSA is caused by psychiatric conditions and not aggravated by these psychiatric conditions. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his OSA is related to service or to his service-connected disabilities. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran, has submitted statements that he believes his OSA to be related to his psychiatric disorders. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his OSA, especially in light of his psychiatric disorder and its associated sleep problems. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran’s OSA was not incurred in or aggravated by service nor was it caused or aggravated by his service-connected disorders, to include a psychiatric disorder. The August 2020 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, Board hearing testimony, and clinical history. This is, in the Board’s view, persuasive, especially with consideration given to the entire record. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.