Citation Nr: 20032470 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 19-32 363A DATE: May 8, 2020 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had sleep apnea at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1998 to March 2000. Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea. 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 the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA and private treatment records from October 2017 to June 2019, such records do not contain a diagnosis of sleep apnea. While the Veteran reported chronic sleep impairment associated with his service-connected depression throughout the period on appeal, he was not diagnosed with sleep apnea. In a November 2018 VA treatment record, the Veteran asked to be checked for sleep apnea, and while the provider noted he had a neck circumference greater than 16 inches, was male, and reported he was tired during the day because his mind did not shut down at night, the provider found his risk factors for sleep apnea were low. Again, in a December 2018 VA treatment note, the Veteran reported trouble sleeping, that he stopped breathing in his sleep, and snoring per his partner, and again the provider found that he did not meet the risk factors for sleep apnea. While the Veteran believes he has a current diagnosis of sleep apnea, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Service connection for sleep apnea is denied. REASONS FOR REMAND Entitlement to service connection for migraine headaches is remanded. The Board cannot make a fully-informed decision on claim because no VA examiner has opined whether his diagnosed migraine headaches are related to service. The record includes an October 2014 report from a private physician who recorded the Veteran’s history of a head injury in service and diagnosed migraines, but did not include an opinion. The November 2018 rating decision on appeal reviewed the Veteran’s service personnel records, however, such records have not been uploaded into the Veteran’s electronic record. On remand, the Veteran’s service personnel records should be associated with the Veteran’s eFolder. On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992).  The matters are REMANDED for the following action: 1. Associate the Veteran’s complete service personnel records with the Veteran’s eFolder. 2. Obtain the names and addresses of all medical care providers who treated the Veteran for any headache complaints since service.  After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since June 2019. 3. After completion of the above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the etiology of the Veteran’s migraine headaches. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record, the examiner should provide an opinion to the following: Is it at least as likely as not that the Veteran’s migraine headaches are related to an in-service injury, event or disease, including as due a reported 1999 in-service head injury while at technical training school? The examiner should consider and discuss as necessary the Veteran’s credible lay statements that his migraine headaches began during service and that he has had continuing symptomatology since service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.