Citation Nr: 18148556 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 13-00 756 DATE: November 7, 2018 ORDER Service connection for insomnia is granted. Service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran was treated for insomnia during service and a medical opinion has linked current problems with insomnia to service. 2. The most probative evidence of record weighs against a conclusion that sleep apnea was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for insomnia have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, while a claim for service connection for insomnia has not been formally developed, given favorable evidence to the Veteran as set forth below, the Board finds that such a claim has been reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (VA is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process); I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). II. Analysis First with respect to insomnia, the service treatment reports (STRs) reflect the prescription of Trazadone in April 2001 as treatment for insomnia, and a September 2017 statement by a private physician found it to be as likely as not that the Veteran’s current problems with insomnia are related to his military service. In short therefore, there is sufficient evidence of record to warrant a grant of service connection for insomnia. As for sleep apnea, the STRs, to include the reports from the April 2001 service retirement examination, are negative for sleep apnea. The Veteran did not reference sleep apnea in his initial claim for service connection filed in February 2005 or a subsequent claim for service connection filed in August 2007. It was not until February 2009 that the Veteran filed a claim for service connection for a sleep disorder. Private sleep studies conducted in April and June 2009 resulted in a diagnosis of obstructive sleep apnea (OSA), but the conclusion following a February 2012 VA examination was that it was less likely as not that the Veteran’s OSA was related to sleep problems in service. The reports from this examination noted the Veteran’s history of an inability to sleep beginning in service, and the rationale for the opinion was as follows: The [V]eteran’s OSA was diagnosed 8 years after his discharge from active duty . . . Review of the [V]eteran’s C-files showed multiple reports of inability to fall asleep or delayed sleeping from [the] early 1990s. There is no[] mention of snoring or inability to sustain restful sleep as found with sleep apnea [in the STRs]. The record reflects no medical opinion that contradicts the above negative opinion and the undersigned finds this opinion—which was preceded by a discussion of the Veteran’s history; documented to have been based on a review of the claims file; and supported by adequate rationale—to be definitive as to the matter of whether the Veteran has sleep apnea that is the result of service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). To the extent the assertions of the Veteran, to include in his March 2017 hearing to the undersigned, or his attorney are being advanced in an attempt to establish that he has sleep apnea that is due to service, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his attorney are shown to have appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. Id. Moreover, while the Veteran is competent to describe certain symptoms of sleep apnea from service to the present time, the undersigned finds the contemporaneous evidence in the form of the silent STRs; the Veteran’s silence with respect to sleep apnea in his initial two claims for service connection; and the negative VA opinion set forth above to be more probative than any lay assertions made in connection with the claim for service connection for sleep apnea, and that these facts weigh against a finding of continuity of relevant symptoms associated with sleep apnea since service. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for sleep apnea. As such, this claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel