Citation Nr: 21024239 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-46 709 DATE: April 22, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran has a diagnosis of sleep apnea that did not result from an in-service injury, illness, or event nor was it proximately caused by or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1976 to August 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board remanded this matter to the RO. There was substantial compliance with the November 2020 Board remand directives as adequate medical opinions were obtained, and the RO issued supplemental statement of the case (SSOC) in February 2021. This matter is now properly before the Board. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Entitlement to service connection for sleep apnea. The Veteran contends that he is entitled to service connection for sleep apnea. He contends that his sleep apnea symptoms began in service. In the alternative, he states that his sleep apnea is related to his service-connected PTSD. The Board has reviewed the Veteran’s service treatment records and there is no diagnosis or indication of symptoms of sleep apnea noted within the records. In fact, the Veteran affirmatively denied frequent trouble sleeping and shortness of breath in January 1995 and May 1998. In January 2015, the Veteran had a sleep study conducted at the Sleep Institute of San Antonio, P.A. The sleep study indicated that the Veteran had an 11-year history of heavy snoring, occasionally witnessed episodes of abnormal breathing during sleep, difficulty initiating and maintaining sleep suggestive of insomnia as well as symptoms of excessive daytime sleepiness. The physician diagnosed the Veteran with obstructive sleep apnea. The physician noted that the Veteran had an 11-year history of symptoms related to sleep apnea, which implies that the symptoms began in 2004, 6 years after the Veteran’s separation from service. In June 2015, the Veteran was afforded a VA examination. During the exam the Veteran stated that his wife initially noted snoring began in 1992, and that the Veteran would stop breathing for approximately 5 to 10 seconds while sleeping. The June 2015 examiner reviewed medical literature, the treatment records, the private medical opinion, and the lay statements submitted by the Veteran’s wife and determined that there was no evidence of a pathophysiological relationship between PTSD and sleep apnea. The examiner acknowledged that there has been an association between PTSD and obstructive sleep apnea for years, however there is no evidence of a pathophysiological relationship between the two conditions. The examiner cited to medical research to support this conclusion. The examiner determined that it was less likely than not that the Veteran’s sleep apnea was related to his PTSD. The November 2020 examiner found that the Veteran’s sleep apnea was not proximately caused by or aggravated by any of his service-connected disabilities, to include PTSD. The examiner highlighted the lack of reports of snoring and gasping in the service records. He further noted the 2015 medical record indicating snoring for only 11 years at the time. He stated that chronicity of symptoms was not supported by the evidence of record. The examiner further explained that sleep apnea, PTSD, and his other service-connected disabilities are separate entities and are unrelated. He cited to medical research to support his opinion. When read together, the Board finds the June 2015 and November 2020 medical opinions to be highly probative. Although the Veteran submitted a 2015 private medical opinion providing a positive relationship between PTSD and sleep apnea, the opinion did not include a rationale. The Board finds that the June 2015 and November 2020 medical opinions, when read together, are more probative than the 2015 private medical opinion. The Board acknowledges the Veteran and his wife’s lay statements that his sleep apnea symptoms began during active duty service from approximately 1990 to 1998. Here, the Veteran affirmatively denied frequent trouble sleeping and shortness of breath in January 1995 and May 1998. Thus, the Board finds the contemporaneous medical evidence to be more probative than the Veteran’s lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board may discount the credibility of evidence in light of its relationship to other items of evidence). The Board has thoroughly and sympathetically reviewed the Veteran’s claims file and finds that a preponderance of the evidence is against the Veteran’s claim for service connection of sleep apnea, and therefore must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. Sorathia Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.