Citation Nr: 21023065 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 20-29 104 DATE: April 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence shows that sleep apnea was not present during active duty or until many years thereafter, it is not related to active duty service, and it was not caused or aggravated by a service-connected disability including posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for sleep apnea due to service or the Veteran’s service-connected PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1965 to February 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD) is denied. The Veteran is seeking entitlement to service connection for sleep apnea, to include as secondary to his service-connected PTSD. See VA Form 9. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Initially, the record shows the Veteran being diagnosed with sleep apnea many years after service in March 2017. See April 2020 VA Examination. The Board also finds that the Veteran is competent to report on the visible manifestations of his disability such as difficulty sleeping. See Davidson, 581 F. 3d at 1316. However, the service treatment records, including the December 1968 separation examination, March 1965 examination, November 1988 examination, November 1984 examination, March 1981 examination, February 1980 examination, August 1979 examination, June 1978 examination, and August 1977 examination are negative for a history, complaints, diagnoses, or treatment for sleep apnea. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, at all the above-mentioned examinations, the Veteran specifically denied a history of trouble sleeping and on examination his nose, mouth, neck, throat, and lungs were normal. Id. Furthermore, the Veteran does not claim, and the record does not show that the Veteran sustained an injury in combat that could have caused his sleep apnea. See 38 U.S.C. § 1154 (b); Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012) (holding that, in the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury). Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his sleep apnea. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). The detailed records in service provide particularly negative evidence against the claim, clearly indicating treatment for problems other than the issue before the Board. Similarly, the Board finds that the record does not show the Veteran had a continued problem with sleep apnea in and since service. In fact, as noted above, the service treatment records are negative for a history, complaints, diagnoses, or treatment for sleep apnea; providing highly probative evidence against the claim. Likewise, and more important than the above, the post-service record is negative for complaints, diagnoses, or treatment sleep apnea until 2017; nearly 50 years after service. See April 2020 VA Examination. At this point, the service medical records and the post-service medical evidence provides evidence against the claim. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with sleep apnea in and since service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (b). Furthermore, the Board finds that the most probative evidence of record shows that the Veteran’s current sleep apnea is not due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (d); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Lastly, the Board finds that the most probative evidence of record shows that the Veteran’s current sleep apnea is not caused or aggravated by his service-connected PTSD. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (d). An August 2018 private physician opined that it is more likely than not that the Veteran suffered from sleep apnea during his time on active duty service. The physician offered this opinion without any accompanying rationale and did indicate he had reviewed any of the Veteran’s service treatment records. Therefore, the Board finds this opinion to be of little probative weight, clearly outweighed by the evidence cited above. The Veteran also underwent VA examinations in October 2018 and April 2020. Both VA examiners indicated it was less likely than not that the Veteran’s sleep apnea began in service or is due to service. The Veteran also reported to the October 2020 VA examiner that his sleep apnea began in 2015. The examiners also indicated the Veteran’s PTSD did not cause or aggravate the Veteran’s sleep apnea. The Board has also considered the lay statements by the Veteran’s sister and fellow service member who reported they witnessed the Veteran snoring in service and immediately after service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of sleep apnea falls outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, while the Veteran, his sister, and fellow service member can competently report the onset of symptoms, any opinion regarding the nature and etiology of his condition requires medical expertise that they have not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board cannot assign any probative weight to these assertions that his stated condition is in any way related to his military service. It is important for the Veteran to understand that the medical findings provide highly probative evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that this problem is the result of service, providing a highly clear basis for the opinion. (Continued on the next page)   Consequently, the Board finds that the weight of the evidence is against a finding of service connection for sleep apnea, to include 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. Therefore, entitlement to service connection for sleep apnea is denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.