Citation Nr: 21061641
Decision Date: 10/04/21	Archive Date: 10/04/21

DOCKET NO. 15-18 077
DATE: October 4, 2021

ORDER

Entitlement to service connection for sleep apnea is denied.

FINDING OF FACT

The Veteran has not had a diagnosis of sleep apnea during the appeal period.  

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 January 1997 to April 1997 and July 2006 to December 2007.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2018, the Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge.

This matter was previously remanded by the Board in March 2019 for further development.  A review of the record indicates that the Board's directives were substantially complied with, such that further remand is not warranted.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to service connection for sleep apnea

The Veteran contends that he has sleep apnea which is due to 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 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). 

The Veteran underwent a sleep study in August 2019 which diagnosed him to have primary snoring and periodic limb movement disorder, but not sleep apnea.  The November 2020 VA examiner evaluated the Veteran and determined that he did not have a diagnosis of sleep apnea. 

The Board acknowledges that the Veteran's VA treatment records and the prior Board remand indicate the Veteran was diagnosed to  central sleep apnea by an outside service provider in 2013, prior to the filing of the instant appeal.  However, the reasoning for the diagnosis was not clear and the Veteran failed to attend a second scheduled sleep study.  No subsequent examination has found a sleep apnea disability.  The Board's prior remand asked the Veteran to complete a VA Form 21-4142 to obtain the prior sleep study.  A July 2019 development letter from the RO requested the Veteran fill out and return an enclosed copy of the VA Form 21-4142.  However, no response from the Veteran was received.  Thus, during the period on appeal, the Board finds that the Veteran has not had a diagnosis of 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 specialized medical education.  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. 

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Uller, 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.