Citation Nr: 21015327 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-51 240 DATE: March 17, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The most probative evidence indicates that the Veteran’s sleep apnea is not related to service nor caused or aggravated by his service-connected disability traumatic brain injury (TBI). CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2008 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).   In June 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was last before the Board in December 2019 and has returned to the Board for further appellate review. 1. Entitlement to service connection for obstructive sleep apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for sleep apnea, which he asserts was caused by his service-connected traumatic brain injury (TBI). The Veteran does not contend, and the evidence does not reflect, that his sleep apnea arose during service or within one year after discharge from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309(a). As an initial matter, the Veteran has a current diagnosis of obstructive sleep apnea. Thus, the question for the Board is whether the Veteran’s current sleep apnea is related to his service-connected TBI. In September 2020, a VA examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of his service-connected TBI. Citing to medical literature, the examiner explained that obstructive sleep apnea and TBI are not medically related. As such, the examiner concluded that a nexus has not been established as a thorough review of medical literature does not demonstrate a causal relationship between sleep apnea and TBI. The examiner further opined that the Veteran’s sleep apnea is less likely than not aggravated beyond its natural progression by his service-connected TBI. The examiner explained that Veteran’s obstructive sleep apnea is not a result of a TBI or aggravated by a TBI; thus, it could not be worsened beyond its natural progression due to a TBI. The Board acknowledges an October 2020 private treatment record in which the Veteran’s private physician indicated that patients with TBI have a higher incidence of obstructive sleep apnea; therefore, it is probable the Veteran’s TBI and obstructive sleep apnea are related. However, the Board finds the VA examiner’s opinion to be more probative, as the opinion from the Veteran’s private physician is conclusory with no rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Although the Veteran believes he suffers from a sleep apnea that is related to his service-connected TBI, he has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis, presence, and etiology of sleep apnea are matters that require medical testing and expertise to determine. Thus, the Veteran’s opinion is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. Finally, to the extent that service connection for sleep apnea has been claimed as an undiagnosed illness, sleep apnea is a recognized clinical diagnosis. Moreover, it is not a medically unexplained chronic multi-symptom illness and is not among the diagnosed disabilities for which the Secretary has established a presumption of service connection based on Persian Gulf service. Accordingly, service connection pursuant to the provisions in 38 C.F.R. § 3.317 is not warranted. In sum, most probative evidence is against the claim, and service connection for sleep apnea is denied. In reaching the above 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 for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.