Citation Nr: 21006361 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-51 588 DATE: February 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) (claimed as due to asbestos), to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The evidence of record demonstrates that the Veteran's OSA did not have its onset during military service, was not diagnosed within one year of service discharge, is not otherwise related to service, and was not caused or aggravated by the service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from January 1964 to January 1966. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from an October 2017 rating decision from the Department of Veterans Affairs (VA) regional office (RO). The matter was previously before the Board in September 2020. As part of the Board’s remand directives, the RO was directed to obtain an addendum opinion determining the etiology of the Veteran’s OSA. The appeal has now returned to the Board for further appellate review. Since the September 2020 Board remand, additional records have been associated with the record, including an October 2020 VA medical examination. As the September 2020 remand directives have been fulfilled, further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900(c). 38U.S.C. §7107(a)(2). Entitlement to service connection for obstructive sleep apnea (claimed as due to asbestos), to include as secondary to service-connected post-traumatic stress disorder (PTSD) Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that his OSA is related to service or secondary to his service-connected PTSD. Having reviewed the evidence of record, the Board finds that the preponderance of the evidence of record is against the claim for service connection for OSA on direct and secondary bases, and the claim will be denied. The Veteran's service treatment records (STRs) are silent for any sleep impairment. In a March 2015 Sleep Study Referral, it was noted that the Veteran had a history of snoring and daytime drowsiness for the past one to two years, and that his spouse also notes pauses in breathing at night. The Veteran was subsequently diagnosed of obstructive sleep apnea. See March 2015 Medical Treatment Record - Non-Government Facility The Veteran’s OSA was noted in an August 2017 VA examination, where it was stated that the Veteran required the use of a breathing assistance device such as continuous positive airway pressure (CPAP) machine and that he experiences mild day time fatigue. See August 2017 C&P Examination. However, the examiner did not provide a medical opinion. The Veteran was afforded an examination in October 2017. The examiner opined that the Veteran's OSA is at least as likely as not (50 percent or greater probability) caused by his post service weight gain/obesity; and that the Veteran's OSA is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his post service weight gain/obesity. The examiner’s rationale was that no in-service diagnosis of OSA was found. Citing medical literature, the examiner continued that obesity is listed as the major risk factor for OSA in UpToDate. The examiner concluded that the etiology and aggravation of the Veteran's OSA is his post service weight gain/obesity and not in-service illness that occurred in 1965. In its September 2020 remand, the Board noted that although the October 2017 VA examiner addressed whether the Veteran could be entitled to service connection for OSA on a direct basis, the examiner did not address secondary service connection thus rendering the examination inadequate for adjudicative purposes. Following the Board’s September 2020 remand, the Veteran was afforded a VA examination in October 2020. With respect to direct service connection, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there are no service treatment records for OSA, and the Veteran’s first sleep study was in 2015 which is many years after he had left the service. The examiner added that medical literature shows that OSA is not related to asbestos exposure. The examiner noted that asbestosis may be associated with a chronic cough or bronchitis and that high and/or prolonged exposures to asbestos dusts can cause cancer in humans; however, it does not cause asthma, emphysema, or sleep apnea. Asbestosis is a serious disease and can eventually lead to disability and death. Regarding secondary service connection, the examiner opined that OSA is not aggravated by PTSD or sinusitis. The examiner’s rationale was that OSA is due to hypertrophy of the swallowing muscles. OSA is not due to PTSD as PTSD is related to central sleep apnea. OSA is not due to sinusitis as it is due to hypertrophy of the swallowing muscles and sinusitis is due infection of the sinuses. See October 2020 C&P Examination. The Board finds the October 2017 and October 2020 VA examinations (reviewed in totality) probative in evaluating the claim for service connection for sleep apnea on a direct and secondary service connection bases. The examiners provided supporting explanations with reference to the evidence on file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that a mere medical conclusion is insufficient to permit the Board to make an informed decision regarding the probative value of that opinion). There is no medical opinion to the contrary. Although the Veteran has contended that his sleep apnea had its onset in service and/or that it was caused and/or aggravated by the service-connected PTSD, the Board finds him not competent to make such nexus opinions. A nexus opinion between the development of sleep apnea and service or PTSD requires medical training, expertise, or credentials. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). This is because such a determination is not capable of lay observation in the same way that a dislocated shoulder, ringing in the ears, or varicose veins is. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Even if the Veteran were competent to make such nexus opinions, such opinions would be outweighed by the probative medical opinions of record. Accordingly, service connection for OSA (claimed as due to asbestos) to include as secondary to service-connected PTSD is not warranted. As the preponderance of the evidence is against the claim on all theories, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the claim for service connection for obstructive sleep apnea (claimed as due to asbestos), to include as secondary to PTSD is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.