Citation Nr: 21041303 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-61 584 DATE: July 8, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1994 to September 1996. Subsequently, he served in the National Guard during which he had two periods of active duty from August 2002 to December 2003 and from August 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in November 2019, when it was remanded to obtain an additional medical opinion. The requested development has been completed. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA treatment records reveal that the Veteran was evaluated in January and February 2016 and diagnosed with sleep apnea after sleep studies were conducted. The Veteran has the disability which he claims service connection for, the main failure with his claim is that a nexus to service, or a relationship to a service-connected disability must be shown and this is lacking in this case. Available service treatment records do not show any complaints of, treatment for, or diagnosis of sleep apnea during any of the Veteran's periods of active duty service. On a December 2005 post-deployment health assessment, the Veteran reported having current difficulty breathing and that during his deployment he still felt tired after sleeping. No diagnosis of sleep apnea was made. The Veteran is service connected for posttraumatic stress disorder (PTSD) at a 70 percent disability rating effective April 2013, and tinnitus at a 10 percent disability rating effective August 2015. The Veteran claims entitlement to service connection for sleep apnea. Specifically, he claims service connection on a secondary basis, that his sleep apnea is caused by his service-connected PTSD. On his original claim for service connection for the condition, VA Form 21-526 EZ, filed in March 2016 he specifically indicated that his claimed sleep apnea was related to his service-connected PTSD. On his July 2016 Notice of Disagreement (NOD) he again argued that his claimed sleep apnea was secondary to his service-connected PTSD. He asserted that he was "diagnosed with sleep apnea just after I was diagnosed with PTSD. I did not have Sleep Apnea until I was discharged from returning from Iraq at the same time I had PTSD." The logic of this argument is that because his sleep apnea was diagnosed at the same time, or shortly after his PTSD, which was a decade after he separated from active duty, that the PTSD is causative of the sleep apnea. He also submitted paraphrases and extracts from "studies that have proven that sleep apnea is caused due to PTSD among military veterans." A review of this evidence actually shows that they indicate that sleep apnea makes the symptoms of PTSD worse, not that PTSD causes or aggravates sleep apnea. In June 2016 a VA Compensation and Pension examination of the Veteran was conducted and confirmed the diagnosis of obstructive sleep apnea which was diagnosed by VA sleep study in January 2015. The examiner's medical opinion was that it was less likely than not that the Veteran's sleep apnea was due to or the result of the Veteran's service-connected PTSD. The rationale was that there "is no evidence that provides a nexus between PTSD and Obstructive Sleep Apnea. Obstructive Sleep Apnea is caused by the anatomical enlargement and collapse of the structures in the throat such as the tonsils, uvula, tongue, and soft palate which collapses when an attempt is made to sucked air into the lungs when breathing. The collapse blocks the airway causing the apnea." That is that obstructive sleep apnea is the result of physical defects, which are not caused by the Veteran's service-connected PTSD, a psychiatric disability. In January 2017 another VA examiner revied the evidence of record and stated medical opinion on direct service connection. Specifically, the physician stated that the Veteran's claimed sleep apnea was not related to or caused by an in-service injury, event or illness. The physician noted that the Veteran did indicate "still feeling tired after sleeping" during deployment, not on filling out the medial assessment and that this question is very frequently answered in the affirmative on post deployment questionnaires, and is not an unusual symptom experienced by service members during deployment. Further, the physician noted that the Veteran was ultimately diagnosed with obstructive sleep apnea 8 years after discharge from active duty and that the Veteran's weight had increased in that period, and that obesity was the primary risk factor for developing sleep apnea. In his January 2016 substantive appeal, VA Form 9, the Veteran made many of the same arguments as he did in his NOD. He also asserted that he has sleep apnea symptoms for years prior to his diagnosis, and that his wife told him he snored. In December 2019, another VA medical was obtained by still another VA physician. This opinion states that it was less likely than not that the Veteran's claimed obstructive sleep apnea was incurred in service or caused or aggravated by his service-connected PTSD. Again, the physician restated that obstructive sleep apnea was physical in nature and not related to the service-connected PTSD. The physician referenced the medical evidence of record and provided rationale. The Board finds these opinions highly probative as they were made by three separate medical professionals with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. The Board has considered the Veteran's statements, to include his assertions that he had symptoms of sleep apnea prior to his diagnosis, and that PTSD causes or aggravates sleep apnea. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., such as snoring; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim for service connection for sleep apnea and service connection is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.