Citation Nr: 21022836 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-37 751 DATE: April 19, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is denied. FINDING OF FACT The Veteran’s sleep apnea is not etiologically related to service, to include as secondary to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1994 to May 1997. He appeals a February 2014 rating decision denying entitlement to service connection for sleep apnea. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2017). 1. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea is attributable to active service and/or aggravated by his service-connected disabilities. Specifically, the Veteran contends that his sleep apnea is aggravated by chronic pain from his service-connected disabilities. After review of the evidence, the Board finds that service connection is not warranted. First, the Board will address direct service connection. In this regard, the Board observes that the Veteran’s service treatment records are silent as to treatment for or complaints of sleep issues in service. He was not formally diagnosed with sleep apnea until May 2018. The Veteran reported at his March 2018 hearing that he “had trouble being tired” since an in-service motor vehicle accident but admitted that his sleep apnea symptoms did not begin until 2001, several years after separation from service. The medical evidence does not show treatment for any sleep apnea related symptoms (snoring) until March 2002. Hence, the Board finds that continuity of symptomatology since service has not been established based on the medical evidence and the Veteran’s own statements. Therefore, the evidence does not show that the Veteran’s sleep apnea is the result of any injury in service and thus, service connection on a direct basis is not warranted. Next, the Board will address service connection on a secondary basis. The Veteran is currently service-connected for the following disabilities: traumatic brain injury with conversion disorder (70 percent); convergence insufficiency and constricted visual field (60 percent); neurological deficits, right upper extremity (40 percent); neurological deficits, left upper extremity (20 percent); lumbar strain (20 percent); traumatic brain injury (10 percent); partial complex seizures (10 percent); peripheral neuropathy, right lower extremity (10 percent); peripheral neuropathy, left lower extremity (10 percent); low back scars (noncompensable). He contends that chronic pain resulting from his various service-connected disabilities aggravates his sleep apnea. After review of the evidence, the Board finds that service connection on a secondary basis is not warranted. The Board recognizes the statements from the Veteran regarding an alleged relation between his chronic pain and sleep apnea. While the Veteran is competent to report that he experiences certain symptoms, he is not competent to provide a medical opinion regarding the particular effects his disorders have had on each other. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Although the Veteran is not competent to diagnose and provide etiological opinions related to the disorder on appeal, service connection may nonetheless be established if a nexus is shown by competent evidence, including medical evidence and opinions. The Veteran submitted a private medical opinion from April 2018 offering a conclusory opinion that, with regard to his sleep apnea, it is “more likely than not…to have likelihood and/or medical probability of having the stated condition while on active duty, as a result of exposure or as a secondary/aggravated condition such as TBI/brain syndrome which occurred as a result of MVA during service.” The examiner offered no rationale to support the opinion other than reference to medical literature which shows only a correlation between sleep disorders and traumatic brain injury. However, as discussed above, the evidence does not show nor has the Veteran specifically alleged that his sleep apnea began during service. In addition, the examiner’s reference to “exposure” indicates that the medical opinion was rendered without full knowledge of the Veteran’s particular medical history. As such, the Board affords minimal probative weight to the April 2018 private medical opinion. The Veteran has been afforded VA examinations in October 2019 and January 2021. On both occasions, the examiner opined that the Veteran’s sleep apnea has not been aggravated by his service-connected conditions. After review of the Veteran’s service treatment records, available medical records, after-service lay statements, the September 2020 appellate brief, and the April 2018 private medical opinion, the January 2019 examiner determined that the Veteran’s sleep apnea was less likely than not proximately due to any service-connected condition. The examiner reasoned that obstructive sleep apnea (OSA) is characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. The Veteran's service-connected conditions of convergence insufficiency and constricted visual field, neurological deficits, right upper extremity, neurological deficits, left upper extremity, lumbar strain, peripheral neuropathy, right lower extremity, peripheral neuropathy, left lower extremity, partial complex seizures, scars, left side of lower back and conversion disorder are separate and distinct conditions from OSA and would not cause a recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. Although OSA may be associated with traumatic brain injury patients, the medical literature does not support that a traumatic brain injury is causative of a recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep which defines OSA. After review of the competent medical evidence, the Board assigns significant probative weight to the opinion of the January 2021 VA examiner. The opinion was rendered by a qualified medical professional after complete review of the Veteran’s claims file and application of the facts to current medical knowledge. As such, the evidence indicates that the Veteran’s sleep apnea is not aggravated by his service-connected disabilities. Accordingly, service connection on a secondary basis is not warranted. Considering the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection for sleep apnea and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel