Citation Nr: 21008889 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-04 183A DATE: February 18, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s OSA, was caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for OSA as secondary to service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1966 to May 1968. The claim for special monthly compensation (SMC) based on the need for aid & attendance was previously before the Board of Veterans Appeals (Board) in September 2018 and has since been granted pursuant to a May 2020 rating decision, consequently, that matter no longer remains appeal. The service connection for OSA claim was previously remanded by the Board of Veterans Appeals (Board) in September 2018 for addendum VA medical opinions addressing a secondary service connection theory of entitlement. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service connection for OSA (to include as secondary to service-connected PTSD) Legal Criteria Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 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). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994).The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Factual Background & Analysis The evidence of record reflects that the Veteran was diagnosed with OSA in January 2010, and the medical evidence consistently indicates poor sleep patterns and frequent insomnia. Service treatment records (STRs) reflect reports of difficulty sleeping and the Veteran jumps at night because he used to sleep next to a continual nightly mortar barraged. See January 1970 STRs. A November 2013 letter from the Veteran’s then representative contended that the Veteran’s sleep apnea is secondarily service connected to his PTSD. A subsequent letter stated the Veteran can only wear his CPAP machine 50 percent of the night and that he gets very poor sleep because he snatches off his CPAP due to his PTSD symptoms. In May 2018 the Board remanded this matter for a VA medical opinion to address whether the Veteran’s OSA was caused or aggravated by his service-connected PTSD. The November 2020 VA addendum medical opinion first states that it is less likely than not that OSA is proximately due to or the result of service-connected PTSD. As a rationale, the examiner explained that, after a review of the medical evidence, the Veteran has experienced sleep disturbances including insomnia and nighttime restlessness due to his PTSD since separating from service. Further, he posited that it is likely that the Veteran’s weight gain since separation from service (169 lbs. in 1970 to 252 lbs. in 2020) is responsible for the onset of his OSA. The examiner reviewed an April 2010 sleep study and a recent February 2020 sleep study noting that the results of both demonstrated that weight loss would improve his symptoms. With regards to whether OSA was aggravated by service-connected PTSD, the examiner determined that no baseline level of severity of the Veteran’s OSA disability could be established because in the February 2020 sleep study the Veteran did not reach REM sleep and the Veteran gained over 50 pounds since his last sleep study in 2010. The examiner stated that it was less likely than not that OSA was aggravated beyond its natural progression by service-connected PTSD. The rationale given was as follows: “Based on the available evidence showing a less severe sleep study, it is at less likely that the sleep apnea was aggravated beyond its natural progression.” The Board has carefully reviewed the lay and medical evidence of record and finds that the most probative evidence is weighted against finding that the Veteran’s OSA is proximately due to or aggravated by service-connected PTSD. In that regard, the November 2020 VA examiner’s negative nexus opinions with respect to a secondary service connection theory of entitlement considered the Veteran’s entire medical history and provided adequate rationales to support its conclusions. (Continued on the next page)   The Board acknowledges the Veteran and his representative’s statements regarding his OSA in relation to his service-connected PTSD. Certainly, the Veteran is competent to describe experiencing symptoms and his medical treatment records corroborate at least to some extent the Veteran’s history of symptoms. Nevertheless, as a lay person, the Veteran does not have the training or expertise to render a competent nexus opinion regarding the etiology of his OSA which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex and requires specific medical training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the VA examiner considered the Veteran’s report of symptoms. The examiner still found that it was less likely than not that his OSA was caused or aggravated by his service-connected PTSD. As such, the Board finds that the Veteran’s opinion is outweighed by the competent opinion of the VA examiner. See Id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s OSA as secondary to his service-connected PTSD. 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 v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.