Citation Nr: 21008619 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-24 035 DATE: February 17, 2021 ORDER Service connection for sleep apnea as secondary to hypertension is denied. FINDING OF FACT The competent evidence of record does not reasonably support a finding that the Veteran's sleep apnea was caused or aggravated by his service-connected hypertension. CONCLUSION OF LAW The criteria for sleep apnea as secondary to hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to May 1990. The Veteran died in August 2017. The Appellant is the surviving widow, who is established as the substitute claimant in the appeals addressed herein, which were pending at the time of the Veteran’s death. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision from a Regional Office (RO) for the Department of Veterans Affairs (VA). The Board previously considered this appeal in May 2018 and remanded this issue for further development. The case returned to the Board for further appellate review. Service connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge 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 requires competent evidence showing (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998); Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated on a secondary basis for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board will assess both medical and lay evidence. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is not generally capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sleep apnea as secondary to hypertension. The Appellant contends that the Veteran’s obstructive sleep apnea was caused by his service-connected hypertension disability. The Veteran's service treatment records do not show any treatments, complaints, or diagnosis for obstructive sleep apnea. The Veteran's VA treatment records show a diagnosis for obstructive sleep apnea from a 2003 and 2008 sleep study, approximately thirteen years, at most, after his separation from active military service. Accordingly, since 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. The question for the Board is therefore whether the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected hypertension. The Veteran was afforded a VA examination in October 2013 addressing whether the Veteran’s sleep apnea was related to his service-connected hypertension. The examiner reviewed the record and noted that the Veteran’s sleep apnea was diagnosed in 2008 by a sleep study. The examiner opined that the Veteran’s sleep apnea was not caused by the Veteran’s hypertension because, as a general matter, sleep apnea was not caused by hypertension. As the October 2013 examiner failed to address the question of aggravation, in 2018, the Board remanded the issue on appeal to obtain an addendum opinion on the matter. In a November 2020 addendum medical opinion, the VA examiner opined that it is less likely than not that the Veteran’s sleep apnea was permanently worsened beyond normal progression by his hypertension. The VA examiner reasoned that there are criteria for causes that worsen sleep apnea, but hypertension was not one of them, citing mayoclinic.org. The Board finds great probative value in the VA medical opinions as they were based on a review of the Veteran’s file and the medical literature. The Veteran has not provided competent evidence of a relationship between the current disability and his service-connected hypertension. Consideration is given to the Veteran's assertions that his obstructive sleep apnea is secondary to his service-connected hypertension. In a March 2013 statement, the Veteran stated, through his representative, that sleep apnea is known to be caused by or aggravated by heart conditions. However, there is no medical opinion in the Veteran's record that endorses such a medical link. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of obstructive sleep apnea as is specific to this case, is outside of the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for sleep apnea as secondary to hypertension, the benefit of the doubt doctrine does not apply, and the claim is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.