Citation Nr: 18131241
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-01 035
DATE:	August 31, 2018
Entitlement to service connection for sleep apnea, to include as secondary to the service-connected major depressive disorder (previously rated as specified depressive disorder and mood disorder).
Entitlement to service connection for sleep apnea, to include as secondary to the service-connected major depressive disorder (MDD) is denied.
Sleep apnea was not shown in service or for many years thereafter, and has not been shown to be related to service or a service-connected disability.
The criteria for service connection for sleep apnea have not been met or approximated.  38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).
The Veteran served on active duty from June 1972 to May 1992.This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Reno, Nevada.
Service Connection Claim
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).
The Board has reviewed all of the evidence in the Veteran’s claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).
Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).
In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Service connection is available for a disease or disability that is proximately caused by a service connected disease or disability; and for the aggravation of a non-service connected disability by a service connected disease or disability.  38 C.F.R. § 3.310 (2017).
Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty.  38 C.F.R. § 3.309.  However, sleep apnea is not considered to be a “chronic disease” under 38 C.F.R. § 3.309.  Therefore, service connection for sleep apnea on a presumptive basis is not warranted.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
In this case, VA and private treatment records show diagnoses of sleep apnea.  Therefore, Hickson element (1) is met. 
With respect to Hickson element (2), in-service disease or injury, the Veteran asserts that his sleep apnea is related to his service-connected MDD.  Accordingly, Hickson element (2) is at least arguably met.  
The Veteran was afforded a VA examination in September 2015 in which the examiner opined that the condition claimed was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service    connected condition. The examiner stated that extensive review of medical literature revealed that mood disorder is not one of the known risk factors for development of sleep apnea; in the case of the Veteran, his risk factors included his age, male gender, and obesity.
The Veteran was afforded a VA examination in November 2017 in which the examiner opined that the sleep apnea was not at least as likely as not aggravated beyond its natural progression by the mood disorder. The examiner stated that Veteran's mood disorder was contributing to his insomnia; however, it had no effect on the etiology and/or progression of sleep apnea which was due to collapse of the oropharyngeal tissue. The examiner stated that the Veteran's claustrophobia was impairing his compliance with his CPAP machine, but this was not considered an aggravation of sleep apnea.
In this case, as to the issue of the etiology of the Veteran’s sleep apnea, the Board finds that the VA examiners made it clear that it was their opinions that the Veteran’s sleep apnea was not related to service or to his service-connected MDD.  To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination.  Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012).  Here, the examiners made it clear that sleep apnea was caused by a collapse of the oropharyngeal tissue, that the service-connected MDD did not cause or aggravate the sleep apnea, and that the Veteran’s age, male gender, and obesity were risk factors.  
Accordingly, the Board concludes that the VA opinions carry significant weight.  No other competent opinion providing a positive nexus between service or the service-connected MDD and the Veteran’s sleep apnea has been presented. 
The Board acknowledges that the Veteran is competent to testify as to his beliefs that his sleep apnea is related to service or the service-connected MDD.  However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology.  See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  
While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation.  Therefore, the Veteran’s claims that his sleep apnea was etiologically related to service or to the service-connected MDD are outweighed by the competent and probative medical opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). 
The Board finds the to the VA examiners’ opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran’s history, and consideration of medical principles by licensed medical professionals.  Therefore, a nexus between service and the Veteran’s sleep apnea and service or the service-connected MDD cannot be established, and the criteria of Hickson element (3) are not met. 
In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014).
Veterans Law Judge
Board of Veterans’ Appeals

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