Citation Nr: 21021895 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-52 629 DATE: April 14, 2021 ORDER Service connection for obstructive sleep apnea, as secondary to posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s currently diagnosed obstructive sleep apnea is not secondary to the service-connected PTSD disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, as secondary to the service-connected PTSD disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from November 1989 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Since the issuance of the July 2017 Supplemental Statement of the Case (SSOC), additional evidence has been received by the Board, specifically VA treatment records. Having reviewed this evidence, the Board finds such evidence to be either irrelevant to the issues on appeal or cumulative and redundant of previously submitted evidence and, as such, a waiver of initial RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c) (2020). Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) medical 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) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2019). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In rendering a decision on appeal, 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Analysis The Veteran has a current diagnosis of obstructive sleep apnea since 2012. See, e.g., Private treatment records of S.S., M.D. dated August 14, 2012; VA Sleep Medicine Note dated June 20, 2019. The Veteran asserts that his obstructive sleep apnea is related to his service-connected PTSD. See Statement in Support of Claim received March 25, 2013; Notice of Disagreement received December 16, 2013; see also Board hearing transcript dated January 15, 2021 at pgs. 7-8. The Veteran’s service treatment records are negative for complaints of, or treatment for, obstructive sleep apnea. Post service treatment records reflect a diagnosis of obstructive sleep apnea in 2012. See Private treatment records of S.S., M.D. dated August 14, 2012; VA Pulmonary Outpatient Consultation dated August 1, 2013. However, the post-service treatment records do not address the etiology of the Veteran’s sleep apnea. The Veteran underwent a VA PTSD examination in July 2011; however, the examination report does not suggest that the Veteran’s PTSD is associated with sleep apnea or vice versa. The Veteran was afforded a VA sleep apnea examination in August 2016. The VA examiner reviewed the Veteran’s claims file, acknowledged the Veteran’s assertion that his sleep apnea was caused by his service-connected PTSD, and confirmed the diagnosis of obstructive sleep apnea. See VA sleep apnea examination dated August 22, 2016. The VA examiner opined that the Veteran’s sleep apnea was less likely than not caused or aggravated by the service-connected PTSD. The examiner explained that the Veteran’s obstructive sleep apnea was likely caused by an anatomical abnormality in which the tissues around the airway collapse during sleep, resulting in snoring and apnea, and that while PTSD can result in sleep deprivation, PTSD does not affect the tendency of one’s airway to collapse. Additionally, the examiner opined that the Veteran’s sleep apnea was not aggravated by his PTSD, explaining that the record does not reflect an increase in severity of the disorder from the baseline severity (mild) diagnosed in 2012. See Allen, supra. The examiner assigned low probative weight to an article submitted by the Veteran indicating that sufferers of PTSD may have coexistent sleep disorders such as sleep apnea, noting that the article neither established nor implied that PTSD causes sleep apnea. See VA Medical Opinion dated August 22, 2016. The Board finds the August 2016 VA opinion to be competent, credible, and probative. It was authored by a licensed physician who has demonstrated that he is competent through education, training, and experience to offer his medical opinion, and who reviewed the Veteran’s claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his obstructive sleep apnea; the opinion was based on a review of the evidence of record as well as lay statements of the Veteran. The opinion is consistent with medical literature referenced by the examiner therein as well as the medical evidence of record, which reflects that the Veteran was no longer experiencing apneas and only intermittently using his CPAP device. Moreover, the opinion contains clear conclusions with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez, supra. Notably, there are no medical opinions or other competent medical evidence of record that weighs against the August 2016 opinion. Accordingly, the Board finds the August 2016 VA medical opinion highly probative, competent and persuasive medical evidence in this case. The Board notes that during the January 2021 Board hearing the undersigned left the record open for 60 days at the Veteran’s request so he could submit additional evidence in support of his claim; however, to-date, no new evidence has been submitted. While he submitted a medical article indicating that persons with PTSD have sleep problems, it was not case-specific. The Court has held that “generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive.” Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish “a plausible causality based on objective facts.” Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). To the extent that the Veteran offers his statements relating obstructive sleep apnea as evidence that it was caused or aggravated by his service-connected PTSD, the Board recognizes that while the Veteran is competent to offer testimony on observable symptoms of his sleep apnea and PTSD, as a lay person he has not been shown to be competent to provide evidence as to medical questions, particularly complex medical questions, such as determining the etiology of airway disorders. See Jandreau, 492 F.3d at 1376-77. Most critically, the Veteran’s essential contention of a nexus between his sleep apnea and PTSD disorders has been fully investigated as mandated by the Court’s decision in Jandreau. For the reasons and bases discussed above, the probative evidence indicates that the Veteran’s currently diagnosed obstructive sleep apnea was less likely than not caused or aggravated by his service-connected PTSD. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the preponderance of the evidence is against the claim and the appeal will be denied. Because the preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is necessary to provide the Veteran with a VA examination in connection with his claim for an increased disability rating for bilateral hearing loss. Notably, a VA compensation examination for hearing loss has not been conducted since March 2017 and such examination was for the purpose of determining the severity of the Veteran’s service-connected bilateral hearing loss disability. In addition, the Veteran contends that his hearing loss is worse than when he was evaluated in March 2017. See Board hearing transcript dated January 15, 2021 at pgs. 3-4. The passage of time between a VA examination and adjudication is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, the Veteran, in his August 2019 appellate brief and during the January 2021 Board hearing, indicates that his symptoms are worse than when previously examined, and the Veteran is competent to report observable symptomatology such as increased hearing difficulties. See Layno, 6 Vet. App. at 470. Accordingly, a new audiological examination should be afforded to him. See Snuffer, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran and invite him to provide information regarding all outstanding private medical treatment that the Veteran received for his service-connected bilateral hearing loss disability, providing him VA Forms 21-4142, Authorization and Consent to Release Information to the VA for this purpose. Also advise him that he may submit such records if he so chooses. Allow a reasonable time for reply. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner. 4. After completing any additional development deemed necessary, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.