Citation Nr: 18145584 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 15-39 338 DATE: October 30, 2018 ORDER Service connection for sleep apnea is denied. FINDINGS OF FACTS 1. The Veteran had active service from April 1994 to November 2003 plus additional service in the Reserve from July to November 1992. 2. A December 2005 rating decision denied service connection for sleep apnea. The Veteran did not appeal and that decision became final. 3. Evidence added since the December 2005 rating decision includes additional relevant service treatment records (STRs). 4. Sleep apnea was not shown in service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for reopening a claim of entitlement for direct service connection for sleep apnea have been met. 38 U.S.C §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.303, 20.1304 (2017). 2. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Historically, the claim for sleep apnea was denied in December 2005 on the basis that STRs were negative for treatment and there was no treatment within one year of service separation. The Veteran did not appeal and the decision became final. In June 2008, the Veteran again filed a claim for sleep apnea asserting that a June 2005 sleep study was consistent with moderate obstructive sleep apnea. In July 2008 and October 2013 additional relevant STRs were also added the record. The former showed that the issues he experienced with his sleep cycle did not pre-exist active service. The latter showed that he still felt tired after sleeping post-deployment. Generally, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c)(1). Given the submission of these new STRs, his service connection claim will be reconsidered without regard to the previous denial. Direct Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The record reflects that the Veteran was diagnosed with moderate obstructive sleep apnea in 2005, and was noted to still have this disability in an October 2011 VA examination. Therefore, the first element of a current disability has been satisfied. With respect to an in-service incurrence, the balance of the evidence weighs against the claim. While in the December 2003 Report of Medical History, the Veteran self-reported “yes” to frequent trouble sleeping since returning from Iraq, this notation does not suffice to show an in-service diagnosis of sleep apnea. Moreover, the Report of Medical Examination reflected that the clinical evaluation was normal for all systems. In support of the claim, the Veteran submitted three buddy statements detailing how his sleep cycle affected him in service, such as loud snoring and cessation of breath. However, because these individuals are not medical professionals, they are not competent to determine that these observations were symptoms of sleep apnea. Therefore, taken together, the separation exam and the buddy statements do not show an in-service incurrence of sleep apnea. To the extent that the Veteran asserts a medical nexus between service and sleep apnea, the evidence does not support the claim. Specifically, in an October 2011 VA examination, the examiner determined that that the Veteran’s sleep apnea was not service connected. The examiner reasoned that while “[the Veteran] may have had some symptoms of sleep apnea in the early 2000s,” he was not diagnosed until 2008, years after discharge. The Veterans Court has found that medical statements framed in terms such as “may” or “could” do not support a claim for service connection. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). There is no medical evidence indicating a nexus between service and the diagnosis of sleep apnea. In reviewing the file, the Board recognizes a discrepancy regarding the correct date of the Veteran’s sleep apnea diagnosis, as the sleep study is dated June 2005 but signed by the clinician in February 2008. However, other evidence, including the appellate brief, indicates that February 2008 was the date that the sleep study was undertaken. The Board has considered the Veteran’s, his wife’s, and his buddy’s lay statements that sleep apnea was incurred in service. They are competent to report symptoms and observations because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, they are not competent to offer an opinion as to the etiology of current sleep apnea due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. Based on the above, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ragofsky, Legal Clerk