Citation Nr: A19001569 Decision Date: 09/25/19 Archive Date: 09/25/19 DOCKET NO. 190131-11322 DATE: September 25, 2019 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea did not originate in service and is not otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to April 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal came to the Board from a May 2017 rating decision, which the Veteran perfected in a March 2018 Form 9. Thereafter, before the appeal was activated by the Board, the Veteran elected the modernized review system in August 2018 and requested Higher-Level Review via a RAMP OPT-IN Election Form. In December 2018, the RO sent the Veteran a letter acknowledging his August 2018 election to participate in the Rapid Appeals Modernization Program (RAMP), and in response, withdrew the appeal for service connection for sleep apnea in the Legacy system. In a December 2018 rating decision, the RO denied the claim. In January 2019, VA received the Veteran’s disagreement with the December 2018 rating decision, and selected the “evidence submission” option appeal to the Board. See January 2019 RAMP Opt-in Election. The Board may consider evidence through the date of the election into the RAMP system as well as any evidence received during the 90-day period following submission of the January 2019 selection forms. Entitlement to service connection for obstructive sleep apnea. The Veteran contends that his obstructive sleep apnea had its onset during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 obstructive sleep apnea, and evidence shows that the Veteran reported having frequent trouble sleeping during active service in February 1988 and August 1999, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. See March 2017 STR – Medical and April 2017 C&P Exam. VA and private treatment records show the Veteran was not formally diagnosed with a sleep disorder by a sleep study, to include obstructive sleep apnea, until February 2017, over 16 years after separation from service, and post-service treatment records did not note treatment for any sleep impairment until 2006, over 5 years after separation from active service. See September 2010 Medical Treatment Record – Government Facility and April 2017 Medical Treatment Record – Non-Government Facility. The Board acknowledges the Veteran’s reports of primary and secondary insomnia during the in-service September 1999 retirement examination. See March 2017 STR – Medical. However, the Board notes that this is based on the Veteran’s subjective reports and that the note was not a confirmed diagnosis of a sleep disorder. As indicated by the Veteran, he was not provided a formal sleep study until 2017. See January 2019 Correspondence. While the Veteran is competent to report having experienced symptoms of frequent trouble sleeping since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of obstructive sleep apnea. The issue is medically complex, as it requires specialized medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Instead, the April 2017 VA examiner opined that the Veteran’s obstructive sleep apnea is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that although the Veteran reported difficulties sleeping during service, this was subjective only and that the Veteran’s claims file lacked objective medical evidence to confirm diagnosis or treatment for sleep apnea during military service. The examiner’s opinion is probative, because it is based on an accurate medical history, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board affords the examiner’s opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the objective evidence of record as well as the Veteran’s lay statements and history of symptom manifestation, and ultimately did not attribute the Veteran’s current sleep impairment to the symptoms reported during active service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As noted above, it is consistent with the objective evidence of record reflecting two complaints of sleep problems during service, a lack of sleep related complaints until approximately five years after his separation from service, and lack of diagnosis of sleep apnea until approximately 16 years after his separation from service. Furthermore, there are no competent opinions to the contrary. (Continued on the next page)   To the extent the Veteran asserts that he has continued to experience sleep problems since his military service, the Board finds the lack of reports of such in the contemporaneous medical records more probative and ultimately more persuasive than his more recent assertions. The Board finds it significant that although medical records date from his military service to the present, any contain various medical complaints, the first indication of sleep problems was not until approximately 2006. The Board concludes that if the Veteran was experiencing problems sleeping on a continual basis since service, there would have been earlier reports in the file. The Board acknowledges the Veteran’s statements attributing his disability and other symptoms to service; nevertheless, the Board reiterates that the Veteran is not competent to opine on the etiology of a complex medical condition such as a sleep disorder, and his statements are therefore afforded little weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board concludes that the probative evidence of record does not support the claim of entitlement to service connection for the Veteran’s current obstructive sleep apnea. The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.