Citation Nr: 22017974 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 17-57 849 DATE: March 27, 2022 ORDER Entitlement to service connection for sleep apnea, including as secondary to service-connected traumatic brain injury and mood disorder (TBI), is denied. FINDING OF FACT The Veteran's sleep apnea is not related to his active service and was not caused or aggravated by his service-connected TBI. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, including as secondary to service-connected TBI, are not met. 38 U.S.C. §§ 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 from June 1981 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in March 2019. By way of history, in an October 2016 rating decision, the RO denied service connection for sleep apnea on a direct basis. Shortly thereafter, the Veteran filed a claim indicating that his sleep apnea was secondary to his service-connected TBI. The March 2017 rating decision denied the Veteran's claim on a secondary basis. Within one year of both rating decisions, the Veteran filed a timely notice of disagreement, initiating this appeal. Service Connection The Veteran contends that his sleep apnea disability is related to his active service. Alternatively, he contends that his sleep apnea disability is related to his active service as secondary to his service-connected TBI. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). With respect to evidence of a current disability, the Veteran was diagnosed with obstructive sleep apnea in July 2016. A current disability has therefore been demonstrated. See September 26, 2016 Medical Treatment Record Non-Government Facility. In a February 2017 medical opinion, a VA examiner opined that the Veteran's sleep apnea was less likely caused or aggravated by the Veteran's service-connected TBI. By way of rationale, the examiner indicated that there was no medical evidence of record supporting such a relationship, and that the most likely etiology was obesity, as well as risk factors such as his age and being male. In its March 2019 remand, the Board asked for an addendum medical opinion from another VA examiner to address whether documented in-service conditions, including TBI, were related to Veteran's sleep apnea. In a May 2020 addendum medical opinion, another VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his active service. The examiner noted that no nexus was established, as the sleep apnea was diagnosed 30 years after separation from the military. In regard to secondary service connection, the examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of his TBI. A similar negative etiology opinion was provided as to aggravation of the claimed condition. The examiner noted that obstructive sleep apnea happens when breathing is either stopped or reduced during sleep because of a narrowing or blockage of the upper airway. As none of the cited conditions, including TBI, cause physical obstruction of the airways, the conditions did not cause the Veteran's obstructive sleep apnea. The Board finds this opinion to be fully responsive to the Board's remand instructions, as the requested opinions have been provided. After a review of all of the evidence, the Board finds that the Veteran's sleep apnea is not related to his active service. As noted above, service connection is warranted for a disability resulting from a disease or injury incurred in or aggravated by active service. The record contains no competent opinion linking the Veteran's sleep apnea to his active duty. Likewise, the Board finds that the Veteran's sleep apnea is not related to his service-connected TBI. A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. The May 2020 examiner competently explained the mechanics of the specific type of sleep apnea the Veteran was diagnosed with and the reason the cited conditions were not the cause, or the cause of any aggravation. The May 2020 opinion provided by the VA examiner is persuasive evidence, opposing rather than supporting the claim, because the opinion accurately reflects the evidence of record and provides a discussion of all relevant facts. The examiner's opinion offered rational and plausible explanations for the conclusions reached. The Board acknowledges the Veteran's statements that his sleep apnea causes sleep deprivation and affects his job, marriage, and family. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Here, the Veteran is competent to describe his sleep apnea symptoms. However, he is not shown to have the experience and medical expertise required to opine about the relationship between his sleep apnea and service or a service-connected disability. That relationship is an inherently complex medical question. In the instant case, licensed medical professionals have determined that service connection for the Veteran's sleep apnea on a direct and secondary basis is not warranted. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for sleep apnea, including as secondary to TBI, is not warranted, and the claim is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.L. Hamilton, 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.