Citation Nr: 22017329 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-61 502 DATE: March 24, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected tinnitus and/or insomnia, is denied. FINDING OF FACT Currently diagnosed obstructive sleep apnea did not manifest on active-duty service and is not otherwise shown to be related to service or to a service-connected disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1110, 1131, 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 United States Navy from March 1977 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), denying entitlement to service connection for obstructive sleep apnea. In December 2016, the Veteran requested a hearing in his substantive appeal. In May 2017, the Veteran, through his representative, submitted a statement expressing his desire to withdraw his previous request for a hearing. Accordingly, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). In May 2019, the Board recharacterized the claimed condition of obstructive sleep apnea to include insomnia, as reflected in the Veteran's medical records, and to include as secondary to service-connected tinnitus. The Board then remanded the claim for a VA examination on whether the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected tinnitus; the examiner was also instructed to address a medical study submitted by the Veteran which found an association between tinnitus and insomnia. In July 2021, the Board found the December 2019 VA examination inadequate and remanded the issue for a new VA examination to answer the same answers as requested in the first remand, specifying that the new examiner must also provide an opinion that addressed both causation and aggravation of the Veteran's sleep apnea by his service-connected tinnitus. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2021, while this remand was pending, the AOJ granted entitlement to service connection for insomnia, as secondary to service-connected tinnitus, effective August 25, 2021. As this partial allowance did not constitute a full grant of benefits on appeal, the claim remains on appeal and returns to the Board for consideration. AB v. Brown, 6 Vet. App. 35 (1993). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). 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. 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 the claimant. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). A disability which is proximately due to, or the result of, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Service treatment records (STRs) do not contain any complaints, treatments, or references to sleep apnea signs or symptoms. The Veteran's March 1981 separation exam noted his health was normal; no conditions or defects were noted. The Veteran receives medical treatment through the VA. In May 2015, he was referred for a sleep medicine consult and underwent a sleep study. He was diagnosed with insomnia and mild obstructive sleep apnea. His treating doctor recommended the Veteran seek treatment for insomnia first and request a CPAP machine later if treatment for insomnia did not help. The Veteran underwent treatment for insomnia and later requested a CPAP machine. In January 2018, the Veteran reported to his doctor that he used sleep medication and his CPAP machine. In November 2019, the Veteran was afforded a VA sleep apnea examination. The Veteran reported the CPAP machine worked well but he stopped using it after it was damaged. The Veteran reported he was taking trazodone and feeling well-rested. The examiner explained the anatomical causes of sleep apnea and what occurs while a person is sleeping, and then made a general conclusory statement that sleep apnea and tinnitus are unrelated. The examiner failed to provide an opinion that addressed both causation and aggravation of the Veteran's sleep apnea by his service-connected tinnitus. This opinion is inadequate for adjudication as the examiner failed to provide rationale for the conclusion reached. Thus, the opinion is afforded little probative value. In November 2021, the Veteran was afforded a new VA sleep apnea examination. The Veteran reported he has had difficulty sleeping since approximately 1980 and is not currently using his CPAP machine. After reviewing the Veteran's records and examining the Veteran, the examiner also reviewed medical literature from the Mayo Clinic and from the Cleveland Clinic. The examiner concluded that there was no medical literature that supported tinnitus as a cause of obstructive sleep apnea; nor was there any medical literature to support the contention that tinnitus aggravates obstructive sleep apnea. The examiner concluded that the Veteran's OSA is not caused or aggravated by his service-connected insomnia. In December 2021, an addendum opinion was obtained to address whether the Veteran's service-connected insomnia causes or aggravates OSA. The examiner reviewed the Veteran's STRs and VA medical records. The examiner also reviewed medical literature from the Mayo Clinic and from the Cleveland Clinic. The examiner concluded that there was no medical literature that supported insomnia as a cause of obstructive sleep apnea; nor was there any medical literature to support the contention that insomnia aggravates obstructive sleep apnea. The examiner concluded that the Veteran's OSA is not caused or aggravated by his service-connected insomnia. The Veteran asserts there is a nexus between his OSA and his service-connected tinnitus and/or insomnia. While a lay person is competent to testify about their symptoms, or to report what a doctor has told him, only a medical professional is competent to provide a diagnosis. As a lay person, the Veteran is not competent to render an opinion as to the etiology of his claimed conditions as he is a layperson lacking the necessary training and knowledge to do so. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The only competent evidence in the record that addresses the issue of whether there is a nexus to service is the November 2021 and December 2022 VA examination and medical opinions. The first documented indication of the Veteran's sleep disorders in treatment records occurred approximately 30 years after the Veteran's separation from service. STRs do not indicate any complaints regarding sleep; the Veteran's separation exam was normal. Because there is no competent evidence which links the Veteran's conditions to service, to include competent and credible evidence of continuity, direct service connection is not warranted. As there is no evidence to support any finding of a nexus between service and Veteran's current of conditions, service connection is not warranted. After a careful review of the record, the Board finds that the evidence is against a determination that the Veteran's diagnosed OSA is etiologically related to his active-duty service, or related to his service-connected tinnitus and/or insomnia. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the weight of the evidence is persuasively against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.