Citation Nr: 18150899 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 15-31 187 DATE: November 16, 2018 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. FINDING OF FACT Sleep apnea was not present in service or for many years thereafter, and is not etiologically related to service. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to July 1989. Entitlement to service connection for sleep apnea Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. At 54. Analysis The Veteran claims that service connection is warranted for sleep apnea because he first started experiencing symptoms of excessive sleepiness and fatigue during active duty. He contends that he did not seek medical attention during service because he did not realize that his symptoms were more than just normal fatigue, due to training and the regular rigors of military service, and he did not know that he should have reported his symptoms. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a sleep disorder during the Veteran's active military service. VA treatment records show that the Veteran was first diagnosed with sleep apnea based on the results of a sleep study in December 2014, approximately 25 years after his discharge from service. However, these records do not indicate that the Veteran's currently diagnosed sleep apnea is related to his active military service. The Board also notes that the prolonged period without a diagnosis of sleep apnea is probative evidence against the claim. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). Most importantly, though, there is no medical opinion of record linking the currently diagnosed sleep apnea to the Veteran’s service. The Veteran has not provided any competent medical evidence of a nexus between his current sleep disability and his active military service. As noted above, the Veteran alleges that his sleep apnea symptoms first started in service and continued after his discharge. However, to attribute the Veteran's sleep apnea to military service without objective medical evidence of in-service treatment, or continuity of treatment after service discharge, or a medical opinion providing a nexus, would require excessive speculation. The Veteran is competent to report the observable symptoms of a disability; however, it would require medical expertise to establish the etiology of his current sleep disorder, diagnosed as sleep apnea. While lay persons are competent to establish causation in certain instances, the Board must determine, in each case, if the Veteran, as a lay person is competent to establish the etiology of a particular condition. With regard to sleep apnea, the Board finds that this condition requires diagnosis after a sleep study and observation by medical professionals, thus, its etiology is equally complicated. Thus, to determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Thus, he is not competent to provide a nexus between his sleep disorder, diagnosed as sleep apnea, and his period of active service. Accordingly, there is no competent evidence of a link between the Veteran's sleep apnea and his active service. For the reasons and basis stated above, the Board finds that service connection for sleep apnea is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. REASONS FOR REMAND Entitlement to service connection for a bilateral knee disability is remanded. The Veteran contends that he injured his knees during active duty when he fell climbing on top of a M109 Howitzer during a training exercise in the Mojave Dessert. Service treatment records are negative for any evidence of a knee injury during service or at discharge. However, the Veteran’s DD-214 shows that he had a military occupational specialty (MOS) of Cannon Crewmember for 3 years. As such, the Board finds that his reports of injuring his knees while climbing on a military artillery vehicle (M109 Howitzer) are credible and a bilateral knee injury in service is conceded. The Veteran has been diagnosed during VA treatment with bilateral patellofemoral pain syndrome and bilateral knee arthritis. The Veteran is competent to report that he injured his knees during active service and that he has continued to experience bilateral knee pain since his separation from active service. The Veteran's reports provide evidence that a current bilateral knee disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). No medical opinion currently of record addresses the etiology of any currently diagnosed bilateral knee disability. As such, the Board finds that a remand for a VA examination and medical opinion as to the etiology of any current bilateral knee disability is necessary. See 38 C.F.R. § 4.2 (2018). The matter is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, schedule the Veteran with an appropriate clinician for a VA examination to determine the nature and etiology of any currently diagnosed bilateral knee disability. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. The examiner should diagnose all left and right knee disabilities found. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left or right knee disability, is etiologically related, in whole or in part, to the Veteran's active service, including his conceded bilateral knee injury in service. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinion. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The examiner should provide a rationale for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's remaining claim for service connection, based on the entirety of the evidence. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a SSOC. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if otherwise in order KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Fatima Yankey