Citation Nr: 21031565 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-34 682 DATE: May 24, 2021 ORDER Service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Obstructive sleep apnea did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by the Veteran's service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2004 to June 2008, to include service in Southwest Asia. He was awarded the Combat Action Ribbon for his services. This appeal is before the Board of Veterans' Appeals (Board)from a June 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015 the Board issued a remand order for a VA examination to be provided. The Board finds that there has been substantial compliance with Board remand directives. See Stegal v. West, 11 Vet. App. 268, 271 (1998) Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 38 C.F.R. §§ 3.303, 3.304. 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 (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. To substantiate a claim of secondary service connection, the record must show (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159(a)(2). A review of the Veteran's service treatment records (STRs) do not show complaint, treatment or diagnosis for sleep apnea. The first indication of sleep apnea being diagnosed in the record comes in the form of a November 2013 technician stating that the Veteran had a home study for sleep apnea, with the results indicating mild obstructive sleep apnea. The Veteran was provided a VA examination in November 2008. The examiner indicated that there were no symptoms of obstructive sleep apnea present. In April 2015 the Veteran submitted a claim of service connection for sleep apnea. In conjunction with this claim, the Veteran submitted a letter from a certified physician assistant that the Veteran has been diagnosed with sleep apnea and has been prescribed a CPAP machine. The Veteran was provided a VA examination in May 2015. There the Veteran reported that he snored in service and that a medic gave him saline solution for his nose in an effort to alleviate it. The VA examiner diagnosed the Veteran with mild obstructive sleep apnea and opined that it was less likely than not directly caused by, or aggravated by, his military service. Specifically, the VA examiner reported that it appeared less likely than not that the Veteran's sleep apnea was incurred in service. The examiner noted that the Veteran reported symptoms of snoring and snorting in sleep, but that these sounds were more typical of nasal congestion, which the Veteran also reported during service. The examiner reported that the Veteran's did not describe more typical daytime somnolence related to sleep apnea as occurring in service. The examiner noted that the November 2008 VA examiner noted that the Veteran did not have symptoms of sleep apnea. The examiner reported that the Veteran's sleep apnea symptoms were not found in the medical record until 2009. The Board affords significant probative value to the findings of the May 2013 VA examiner, as the examiner performed an in-person examination, reviewed the Veteran's medical records, considered his lay statements, and provided a rationale based upon the record. The claim was denied by the RO in June 2015 and the Veteran submitted a timely notice of disagreement (NOD) in May 2016. In June 2016 a statement of the case (SOC) was provided. The Veteran perfected his appeal via a timely VA Form 9. He further submitted a letter from a certified physician's assistant that stated, in whole: "based on clinical assessment, recent sleep study results, it is more likely than not that his sleep apnea occurred during active duty." See July 2016 Medical Treatment Record Government Facility. The Board affords this opinion diminished probative value, as the certified physician's assistant did not indicate that any medical records were considered besides a single sleep study and did not provide a rationale for his opinion. A medical rationale must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran further provided a lay statement from a fellow service member, who stated that the Veteran had breathing problems when in service. In November 2015 the Board issued a remand order for a medical opinion to determine whether the Veteran's sleep apnea was secondary to his service-connected PTSD. As per Board remand directives, a VA addendum opinion was provided in October 2019. There, the VA examiner opinioned that the Veteran's sleep apnea was less likely than not caused by PTSD. The examiner stated that sleep apnea was not a condition which could be caused by PTSD and opined that the most likely etiology of the Veteran's sleep apnea was his weight gain over time. The examiner further found that the Veteran's sleep apnea was not aggravated by his PTSD. In reaching this conclusion the examiner reported that after a review of the Veteran's claims file, the record did not indicate or suggest a true aggravation of his sleep apnea by his SC PTSD and its expressed symptoms, as records did not suggest a worsening of his sleep apnea. The examiner reported that a 2017 respiratory entry made clear mention of non-compliance using CPAP for treatment of his sleep apnea. The examiner concluded that the record did not indicate a true aggravation of his sleep apnea by his PTSD. The Board affords significant probative value to the findings of the October 2019 VA examiner, given that he reviewed the Veteran's medical records, considered his lay statements, and provided a detailed rationale supported by the record. In the present case, the Board finds that the Veteran has met the first element of service connection as there is a diagnosis of sleep apnea during the appellate period. The second element of service connection has also been met, due to the credible lay statements of the Veteran and his fellow service member as to the Veteran snoring in service, as well as his service-connected PTSD. However, the Veteran's claim must be denied as the criteria for the third element of service connection, a nexus between his current disability and his military service, as not been met. In reaching this conclusion, the Board has found the nexus opinions of the May 2013 and October 2019 VA examiners to be of significant probative value. These nexus opinions hold greater probative weight than the July 2016 opinion from the certified physician assistant, which was generalized, conclusory and devoid of a rationale. A review of the record does not show any other probative nexus opinions. The Board also recognizes that the Veteran believes that his sleep apnea began during active duty service, or in the alternative, was aggravated by his PTSD. However, he has not been shown to be competent to independently diagnose this disability or provide a nexus opinion regarding this issue. The Board noted that the issue of sleep apnea is medically complex, as it requires specialized medical knowledge and training. Therefore, it is outside the competence of the Veteran and his spouse in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau, 492 F.3d at1377. Similarly, although the Veteran's mother-in-law, his friend A.V., and the service members A.P. and M.L are all competent to provide statements concerning their observations of the Veteran's trouble sleeping and persistent snoring, none of the aforementioned individuals have been showing to have the requisite training, knowledge or expertise to independently diagnose sleep apnea. The Board concludes that the preponderance of the evidence is against the Veteran's claim, and as there is no probative evidence of a positive nexus between the Veteran's sleep apnea and his active service or his PTSD, the Veteran's claim must be denied. Although the Board does not doubt the sincerity of the Veteran's beliefs as to his sleep apnea, in the present case there is no reasonable doubt to be resolved, and the Veteran's appeal must be denied. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.