Citation Nr: 18146305 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-35 803 DATE: October 31, 2018 ORDER Entitlement to service connection for sleep apnea, to include as due to service in the Southwest Asia Theater of Operations, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has sleep apnea that manifested during or is that related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as due to service in the Southwest Asia Theater of Operations, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from April 1984 to March 2006. This matter is before the Board of Veteran’s Appeals (Board) on appeal of a March 2013 rating decision by the Department of Veterans Affairs (VA). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154 (a). 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). Under 38 U.S.C. § 1117 (a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of operations). See 77 Fed. Reg. 63225 (2012). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b). The term “qualifying chronic disability” includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). 1. Entitlement to service connection for sleep apnea The Veteran asserts an entitlement to service connection for sleep apnea due to his military service, to include as due to service in the Southwest Asia Theater of Operations. Based on the evidence of record, the Board determines that service connection is unwarranted. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea. Significantly, his separation examination was absent of any complaints of or observed symptoms related to the condition. Medical treatment records show the Veteran was not diagnosed with sleep apnea until May 2011, years after his separation from service. While the Veteran is competent to report having experienced symptoms of tiredness and fatigue since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. The issue is medically complex, as it requires advanced medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran asserts that his sleep apnea stems from working 24-hour workdays while serving in the Gulf War. He further claims that he first noticed signs of fatigue in 2006, and that he would periodically dose off while working. However, the Veteran’s service-treatment records do not suggest that the Veteran suffered from symptoms of sleep apnea or sleep apnea itself. Moreover, the Veteran’s colleague, P.B., from August 2006 to September 2012, certified that the Veteran frequently discussed how he would sleep during work, but this discussion occurred after service. The separation examination and medical records are highly probative of whether the disorder had its onset in service as they were prepared contemporaneous with service. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board also cannot ignore the significant gap in time between when the Veteran left service and when he filed his claim for benefits. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Therefore, the Board determines that the reported history of continued symptomatology is insufficient by itself to warrant service connection. The evidence also fails to show a nexus between his sleep apnea and his military service. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorder to his military service despite his contentions to the contrary. The Board acknowledges the Veteran’s private sleep test diagnosing him with severe obstructive sleep apnea in May 2011. However, the diagnosis by itself provides no medical correlation between the Veteran’s sleep apnea and his service in the Gulf War. There also has been no evidence presented that working long days can cause sleep apnea as the Veteran asserts. Further, there are no treatment records establishing that the Veteran’s sleep apnea is related to active duty, nor has any physician asserted that such a relationship exists. While the Veteran believes his sleep apnea is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the Veteran’s medical records. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran’s sleep apnea to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Finally, the Board acknowledges the Veteran’s argument that his sleep apnea is related to his service in the Persian Gulf. However, the Veteran has offered no evidence to indicate such a linkage, and it is unclear how chronic fatigue syndrome would cause the disorder. Moreover, given that he has been diagnosed with sleep apnea, service connection based on an “undiagnosed illness” is not for application. 38 C.F.R. § 3.317. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. McGee, Law Clerk