Citation Nr: 21009292 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-07 653 DATE: February 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is denied. FINDING OF FACT The evidence is against a finding that the Veteran’s OSA is the result of an in-service event, injury or disease, or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA are not met. 38 U.S.C. §§ 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 January 1977 to January 1981. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2020. The Board remanded the case in April 2020 for additional development and it has now returned for further appellate review. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Veteran currently has OSA. See June 2020 VA Medical Opinion. Thus, the remaining question is whether the current OSA disability is related to service or a service-connected disability. Service treatment records show no complaints, diagnosis, or treatment related to OSA or sleep complaints. During the December 1980 separation examination, evaluation of the Veteran was normal other than some scars. The Veteran testified that he fell asleep on duty during boot camp and had some other incidents like that after boot camp. Board Hearing Tr. at 3. He also testified that he thought he stopped breathing while he was sleeping and woke himself up, although no one ever told him he snored in service. Board Hearing Tr. at 5. OSA is not shown by medical evidence until approximately November 2006, more than 25 years after the Veteran’s separation from service. The Veteran testified that he did not seek medical evaluation because he did not know what sleep apnea was and later that he put off medical attention until he found it would be damaging to his health. Board Hearing Tr. at 4, 5. There are conflicting medical opinions regarding the etiology of the current OSA. There are two medical opinions from Dr. S.B. The first, from April 2015, simply notes the Veteran’s reported history and opines that OSA is “the complication of service related injuries.” No further explanation or rationale is provided to explain how the doctor came to this conclusion; thus, the opinion is of no probative value. The second, from March 2020, is of limited probative value for several reasons. First, while Dr. S.B. opined that the Veteran’s OSA could be related to complications of his service-connected disabilities, no further discussion or rationale was provided as to which disabilities contributed to his OSA and how. Additionally, while Dr. S.B. also opined that the Veteran’s OSA was related to chronic sleep deprivation due to his duties performed in service, the support for this conclusion appears to be a study refenced by Dr. S.B. This study does not address OSA at all and only finds that chronic sleep deprivation resulted in cognitive performance deficits and impaired neurobehavioral functions. Doctor S.B.’s opinion also does not discuss the Veteran’s weight as a factor for the development of OSA. A VA medical opinion was obtained in June 2020. The examiner opined that the Veteran’s OSA was less likely than not due to an in-service injury, event or disease or caused or aggravated by the Veteran’s service-connected disabilities. The examiner explained that the Veteran’s significant increase in weight after service was the cause of his OSA and referenced a notation by a sleep specialist in March 2014 in support of this finding. Regarding the Veteran’s report of symptomatology and sleep deprivation during service, the examiner noted that it is common knowledge that sleep deprivation and falling asleep on post does not cause or lead to by proximity OSA. The examiner noted that snoring/stopping breathing in layman’s terms is simply not the same as OSA. The examiner cited medical literature that finds snoring is not necessarily indicative of OSA and that people with OSA have more of a choking sound to their snores. Regarding secondary service connection, the examiner opined that it is common medical knowledge that generalized anxiety disorder, tinnitus, gynecomastia, and alopecia areata do not lead to, by proximity cause, or aggravate OSA. The Board finds the VA opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and medical literature. The Board has considered the Veteran’s statements, to include his assertions that symptoms began during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., feeling tired; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on review of appropriate diagnostic testing and the Veteran’s statements about his in-service experiences, and reasonably drawn conclusions with supportive rationale. The Board has also considered the Veteran’s wife’s statement. She stated that she noticed the Veteran snoring when they got married in 1986, five years after the Veteran served. She stated that the Veteran would snore progressively louder over time and would stop breathing for a couple of seconds. She then stated the Veteran would fall asleep during movies and television. The statement shows symptoms of sleep apnea after service, but it does not speak to whether he had these symptoms during service. In any event, in-service symptoms were considered by the VA examiner when offering a negative opinion. Thus, the Veteran’s statements and those of his wife do not diminish the probative value of the adverse opinion. Finally, the Board recognizes that the Veteran’s attorney has argued that generalized anxiety disorder is known to cause weight gain and weight has been identified as the cause of the Veteran’s OSA; therefore, service connection should be granted. Simply put, the evidence does not suggest that the Veteran gained weight due to his anxiety disorder which in turn caused his OSA. The Veteran was diagnosed with severe OSA after a December 2006 sleep study was performed. During a May 2017 VA mental disorders examination, no psychiatric diagnosis was rendered and the examiner relayed that the Veteran specifically disputed any enduring symptoms of anxiety. Generalized anxiety disorder was later diagnosed in 2019. The Veteran’s representative has not submitted supporting evidence that an anxiety disorder causes weight gain or any evidence suggesting that this Veteran gained weight because of his anxiety disorder. Again, the Veteran’s anxiety disorder was not diagnosed until years after he was noted to have severe OSA. Given the above, a medical opinion regarding obesity, generalized anxiety disorder, and OSA is not necessary and service connection on a secondary basis with obesity as an intermediate step is denied. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.