Citation Nr: 20008409 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 19-11 558 DATE: January 31, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s diagnosed OSA manifested during his active duty service, or is due to a disease or injury in service. CONCLUSION OF LAW OSA was not incurred in or aggravated by the Veteran’s active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1983 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to service connection for OSA. The Veteran disagreed with the denial and subsequently perfected a timely appeal. The Veteran also separately perfected an appeal as to the issues of entitlement to service connection for hearing loss, vision condition, lumbar spine disability, body numbness, asthma, diabetes mellitus, and skin rash. See the VA Form 9 dated November 2017. However, he requested a videoconference hearing as to those claims. As such, said claims will be addressed in a separate Board decision after the Veteran has been afforded the requested hearing. 1. Entitlement to service connection for OSA. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In this matter, the Veteran has asserted entitlement to service connection for OSA. For the reasons set forth below, the Board concludes that service connection is not warranted. The Veteran’s service treatment records, including his January 2003 retirement examination, are negative for complaints or findings of sleep apnea. Private treatment records dated in March 2016 document a diagnosis of OSA. However, post-service treatment records contain no indication that the Veteran sought treatment for complaints related to OSA prior to March 2016, nor do they contain any indication that the currently-diagnosed OSA is related to his active service. An April 2016 letter was sent to the Veteran notifying him that he would be scheduled for VA examination as to his pending claim; the letter also provided an explanation of the provisions of 38 C.F.R. § 3.655(b). The Veteran was subsequently scheduled to appear for a VA examination in June 2016 to address the etiology of his claimed OSA. However, he failed to confirm that he would appear for the June 2016 VA examination and the examination was cancelled. The Veteran was then scheduled to appear for a VA examination as to his OSA on July 6, 2016; but he failed to appear for that examination. The Veteran has not provided an explanation or good cause for canceling his examination. The March 2019 Statement of the Case (SOC) indicated, in its statement of the evidence, that the Veteran had failed to report for the scheduled VA examination. Where entitlement to a VA benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. When a claimant fails to participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought and (2) whether the claimant lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this case, given the evidence of record, the examination was necessary to establish entitlement to service connection for sleep apnea. With respect to the question of good cause, the Veteran has provided no explanation. Failure to receive notice of an examination could provide good cause for the failure to report. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examination, this fact alone does not constitute good cause for failure to report. Critically, the Veteran has not disputed the report in the SOC that he failed to report for the needed VA examination, nor has he asserted that he did not receive notice of the examination. Neither the Veteran nor his attorney has provided an explanation for the Veteran’s failure to appear at the examination, nor have they requested rescheduling of the examination. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s original claim of compensation for service connection for OSA must be rated based on the evidence of record. As noted, the Veteran’s service treatment records are entirely negative for complaints or findings of sleep apnea. Although the record contains clinical evidence establishing that he was diagnosed as having sleep apnea in 2016, more than a decade after service separation, there is no probative opinion of record relating the Veteran’s diagnosed OSA to his military service. Indeed, there is no probative evidence of record that addresses the etiology of the Veteran’s diagnosed OSA. Unfortunately, as noted above, the Veteran failed to report for this examination, so there are no adequate opinions of record addressing nexus. The Board has carefully considered the assertion of the Veteran that he suffered from diagnosed OSA, which was incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). To the extent the Veteran relates his diagnosed OSA to his military service, he is not competent to do so, as to opine as to the etiology of the diagnosed disability requires medical expertise. Accordingly, the preponderance of the available evidence is against the claim of service connection for OSA. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.