Citation Nr: 21042769 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-05 486A DATE: July 13, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to service-connected PTSD is denied. FINDING OF FACT The Veteran's sleep apnea is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea as secondary to service-connected PTSD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to January 1972. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the July 2019 Board decision found there was new and material evidence and reopened the claim of entitlement to service connection for sleep apnea. Service Connection Generally, to establish service connection a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for sleep apnea as secondary to service-connected PTSD. The Veteran has a current diagnosis of sleep apnea, and is service-connected for his PTSD. He believes his sleep apnea was caused or aggravated by his PTSD. The Veteran submitted a private opinion from Dr. H.S. The doctor opined the Veteran's sleep apnea was more likely than not aggravated by his service-connected PTSD. In July 2019, the Board found that Dr. H.S.'s opinion was insufficient, because it was speculative, as it merely indicated that the Veteran is service-connected for PTSD, had a symptom of sleep disturbance, and noted that PTSD is "commonly associated" with sleep apnea. Thus, the Board remanded for a VA examination. The Veteran was afforded a VA examination in February 2020. The examiner opined the Veteran's sleep apnea is less likely than not caused or aggravated by his service-connected PTSD. He further explained that the Veteran's sleep apnea is more likely due to his obesity, age, and gender. "The most well-documented risk factors are increasing age and increasing weight, and male gender, and it is noted that the veteran had a BMI of 35 and was 68 years when his sleep study was done." The examiner also stated that the Veteran's sleep apnea is mild, making it unlikely to be aggravated by his PTSD. Additionally, the examiner discussed medical literature and studies on the relationship between sleep apnea and PTSD. "A study on OSA and OEF/OIF vets published in 2015 showed increased incidence of OSA in veterans with PTSD, and increasing severity of PTSD increased the risk of testing positive for OSA." However, a study in 2011 showed that sleep apnea may increase the severity of PTSD due to disrupted sleep, which is when "much of emotional reconciliation with the day's events occur," but that "PTSD is not necessarily associated with a higher prevalence of OSA." The Board finds that the February 2020 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, examination of the Veteran, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. Thus, the Board gives the VA opinion more weight than the private opinion from Dr. H.S. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. The Veteran was not diagnosed with sleep apnea until 2004. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection cannot be granted. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.