Citation Nr: 21067574 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 10-40 831A DATE: November 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for restless leg syndrome (RLS) is denied. FINDINGS OF FACT 1. The most probative evidence of record indicates that bilateral hearing loss, COPD or OSA was caused or aggravated by active duty service, a period of active duty for training (ACDUTRA), nor has it been shown to be caused or aggravated by an injury while on inactive duty for training (INACDUTRA) or ACDUTRA. 2. There is no competent evidence of record that shows the Veteran has RLS. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for RLS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training from July 7, 1978 to September 28, 1978. He subsequently served with the South Carolina Army National Guard, to include periods of INACDUTRA and active duty for training ACDUTRA until July 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal of January 2010 and July 2012 rating decisions. In February 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of which has been attached to the claim file. In correspondence dated in September 2021, the Veteran was notified that the VLJ who conducted his February 2015 hearing was no longer employed by the Board, and he was given the opportunity to request an additional Board hearing before another VLJ. However, as the Veteran did not respond within 30 days from the date of the September 2021 correspondence, the Board assumes that he did not want another hearing and will proceed accordingly based on the February 2015 hearing transcript already of record, which the undersigned has reviewed in detail. In May 2015 and June 2018, the Board remanded he appeal for additional development to insure the duty to assist was met. The Agency of Original Jurisdiction (AOJ) has substantially complied with those remanded directives and the case has been returned to the Board for further appellate review at this time. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Reserve and National Guard service generally means ACDUTRA and/or INACDUTRA. ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). The term active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 only applies to periods of active duty and not to the veteran's ACDUTRA or INACDUTRA with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service "by the President of the United States, see 10 U.S.C. § 12401, or that his duty was performed under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, see 38 U.S.C. §§ 101 (21), (22)(C), (23)." The full-time duty must be under 38 U.S.C. §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6 (c), (d). Allen and Key v. Nicholson, 21 Vet. App. 54 (2007). Therefore, for the Veteran's service in the National Guard, only periods of federalized service would qualify for the purpose of VA compensation benefits. Here, there is no indication that the Veteran was called into federal service during the time he served in the South Carolina National Guard. The Veteran's Report of Separation and Records of Service with the Army National Guard (NGB Form 22) noted no prior active federal service. The record does not establish he earned active duty points for Federal service. Retirement Points History Statement notes show that prior to July 1994, the Veteran earned 206 active duty point points for the National Guard. The record does not establish he earned active duty points for Federal service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he developed bilateral hearing loss due to acoustic trauma incurred in service. Specifically, he contends that his hearing loss is directly related to excessive and very loud noise he was exposed to during his limited period of active duty service July 1978 to September 1978, when he served as a cannon crewman. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On VA examination in July 2020, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 20, 25, 30, and 35, in the right ear, and 30, 35, 40, and 35 in the left ear. Speech discrimination was 96 percent in the right ear and 94 percent in the left ear. Concerning the right ear, while the Veteran is competent to report difficulty hearing, he is not competent to assess whether he has disabling right ear hearing loss for VA purposes. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). As there is no current diagnosis of "hearing loss" (for VA purposes) in the right ear contained within the record, service connection is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Very generally stated, while the Veteran's hearing in that ear may not be what it once was, it is still within a range of "normal" for VA purposes. With regards to the left ear, the VA examination in July 2020 showed left ear hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. Nonetheless, the discussion below will assume (but not concede) for purposes of argument that the Veteran has bilateral hearing loss. The Board notes that the record has raised the issue of whether the Veteran had hearing loss that preexisted active duty service. A veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). On enlistment examination in May 1978, an audiogram recorded the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 15, 15, 15, and 30, bilaterally. The pure tone threshold at the 3000 Hertz level was not tested. The Veteran denied a history of hearing loss or ear problems. The hearing thresholds presented on enlistment examination did not establish hearing loss for VA purposes under 38 C.F.R. § 3.385. Moreover, the Veteran was accepted and enrolled for military service. As such, the presumption of soundness attached and is not rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Because the presumption of soundness is not rebutted, this case converts to one for direct service connection. A review of the file reveals that the Veteran's DD-214 forms document active duty service in the Army from July 1978 to September 1978 as a cannon crewman and the VA has conceded his exposure to hazardous noise in service. However, even when conceding that the Veteran was exposed to acoustic trauma during service, this is not the same as having sustained the type of injury that causes chronic hearing disability. In other words, even if he was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals. The service treatment records contain no complaints, history or findings consistent with hearing loss. There is no competent evidence showing a hearing loss disability consistent with 38 C.F.R. § 3.385 during the Veteran's period of active duty service. Nor is there competent evidence showing a hearing loss disability within one year after the Veteran's separation from service in September 1978. A National Guard enlistment examination in June 1986, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 0, 0, 0, and 0, in the right ear; and in the left ear were 0, 0, 0, and 5. The Veteran denied a history of hearing loss or ear trouble. On periodic examination in March 1990 the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 0, 5, 5, 5, and 5, in the right ear; and in the left ear were 0, 0, 0, and 15. The Veteran denied a history of hearing loss or ear trouble. Here, there is no evidence of record with respect to chronic symptoms of hearing loss during active duty service or during a qualifying period of National Guard service, nor has the Veteran reported experiencing chronic symptoms of hearing loss during service or continuously since service separation. Rather the Veteran has contended only that the in-service noise exposure caused the subsequent development of hearing loss sometime after service. As such, the Board finds that the Veteran did not experience chronic symptoms of sensorineural hearing loss during service. 38 C.F.R. § 3.303 (b). On the contrary, the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of bilateral hearing loss since service separation. The post-service record provides particularly negative evidence against these claims, sometimes from the Veteran himself. On VA examination in April 2015, the Veteran reported post-service discharge noise exposure from power tools, as a machine operator for three years wearing ear protection, and nine years outdoors treating and cutting railroad ties with no ear protection worn. On VA examination in July 2020 the examiner acknowledged the Veteran's indisputable exposure to hazardous noise levels during service, but found that there was no supporting data showing an increase of hearing loss (worsening of hearing) during or due to military service using traditional testing methods. The examiner opined, that despite no significant threshold shifts in service, the likelihood of cochlear damage and loss of hearing due to military noise exposure was at least as likely as not. In an addendum statement the examiner noted that the Veteran's enlistment audio in May 1978, showed a mild loss at the tested frequency of 4000 Hertz, bilaterally, and on separation from service in March 1990, there was a mild loss at the tested frequency of 6000 Hertz for the left ear. Based on this finding, the examiner opined that the Veteran's right ear hearing loss was not aggravated beyond normal progression in military service; however, the Veteran's left ear hearing loss was aggravated beyond normal progression in military service. The Board affords the July 2020 VA examiner's reports little probative weight. The examiner's opinions are internally inconsistent and fail to distinguish the Veteran's limited period of active duty service was from July 1978 to September 1978, and National Guard service as it points to the March 1990 examination report as his service separation examination. The examiner failed to acknowledge the Veteran's documented more significant occupational noise exposure after active duty service in September 1978. Additionally, the examiner failed to address the lack of a diagnosis of hearing loss prior to the July 2020, and the fact that the Veteran denied a history of hearing loss throughout active duty service and National Guard service. Based on the above, the preponderance of the evidence is against a finding that the Veteran's claimed hearing loss had onset during service his period of active duty service from July 7, 1978 to September 28, 1978. Notwithstanding, assuming, arguendo, that the Veteran's bilateral hearing loss did have onset during the time period when the Veteran was in the National Guard, as he asserts, the Veteran has failed to identify, and the record does not reveal, any acoustic injury occurring during a qualifying period of ACDUTRA or INACDUTRA. Accordingly, entitlement to service connection would not follow even if onset of hearing loss during National Guard service were to be conceded. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). Furthermore, the Veteran has not contended, and the evidence does not show, that a preexisting hearing loss disability was aggravated by an injury or disease during a qualifying period of ACDUTRA or INACDUTRA. Additionally, the Veteran himself reported occupational noise exposure from power tools, as a machine operator and cutting railroad ties for over a decade. While the Veteran may genuinely believe that he has hearing loss that is due to service, this assertion is contradicted by the service records that document normal hearing in June 1986 and March 1990. Consistent with this, he reported no history of, or current, ear trouble or hearing loss. It does not contradict his assertion that he incurred hearing loss while in the National Guard service. However, this assertion is inadequate to substantiate a service connection claim as it is not tied to any specific qualifying period of ACDUTRA or injury incurred during INACDUTRA. Based on the foregoing, because the preponderance of the evidence shows that the Veteran's claimed hearing loss disability is not related to a disease or injury incurred during active duty service, or a qualifying period ACDUTRA or an injury during INACDUTRA, the benefit of the doubt doctrine is not applicable to this case. Accordingly, service connection hearing loss is not warranted. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for COPD The Veteran claims that service connection for COPD is warranted because it was incurred in service or otherwise a result of service. He contends that as a cannon crewman from July 7, 1978 to September 28, 1978, more than 40 years ago, he was exposed to lung irritants, including gun powder, smoke and other chemicals, which caused him to develop COPD. Reportedly, the condition became symptomatic sometime during National Guard service. The service treatment records fail to document any complaints, diagnosis or treatment for a respiratory disability. A National Guard enlistment examination in June 1986, showed that the Veteran's lungs and chest were clinically evaluated as normal and the Veteran denied a history of shortness of breath, chronic cough, or chest pain or pressure. On periodic examination in March 1990, the Veteran's lungs and chest were clinically evaluated as normal and the Veteran denied a history of shortness of breath, chronic cough, or chest pain or pressure. Post-service treatment records after 1996, reflect complaints of chronic coughing, intermittent wheezing and dyspnea, along with a history of asthma and tobacco smoke, one pack per every other day since the age of 16. Private treatment records in 2008 reflect an assessment of COPD. A February 2011 hospital note recorded a history of smoking 1/2 pack per day. In September 2013, he was admitted for a COPD exacerbation after being exposed to chemicals while stripping and waxing polyurethane floors. In support of his claim, the Veteran submitted an April 2014 opinion statement from a private nurse practitioner (RN). The RN noted that the Veteran served as a cannon crewman in the Army from July 7, 1978 to September 28, 1978, and in the Army National Guard from September 29, 1978 to July 1, 1994. The RN also noted that in 1996 the Veteran reported smoking one pack per day and he had a history of asthma. In 2000, a 25 year history of tobacco use was noted. A February 1999 clinical treatment note recorded respiratory symptoms of dry cough, intermittent wheezing and dyspnea at rest. In 2008 a past medical history of COPD was noted. The Veteran's military duties as a cannon crewman exposed him to multiple lung irritants. The RN opined that although cigarette smoking was a potent cofactor in COPD, it was not the only long irritant that could cause COPD, as the condition had a complex be multi-factorial etiology. Occupational exposure could also be linked to COPD. Therefore, the RN concluded that in-service occupational exposure to lung irritants, such as heavy smoke, fire, dust and chemicals, at least as likely as not contributed to the onset of COPD. A VA examiner in January 2020, indicated that according to the Center for Disease Control and Prevention, although COPD could be caused by occupational exposure, with an estimation of 15 percent, the GOLD 2014 report estimated the fraction of COPD attributable to work in the United States was 19.2 percent overall. These estimates were consistent with a statement published by the American Thoracic Society that concluded that occupational exposures accounted for 10 to 20 percent of either symptoms or functional impairment consistent with COPD. The Veteran did not have a documented history of respiratory conditions prior to military service and his role in the military exposed him to multiple lung irritants. The examiner indicated that there was substantial evidence supporting a causal relationship between occupational exposure and the development of COPD. The opinions of the R.N. in 2014 and the January 2020 VA examiner, at most, support a finding that the Veteran's two months plus in service exposures to lung irritants contributed to his respiratory symptoms. Both clinicians failed to adequately explain how the Veteran's limited two months plus of reported in-service exposure to lung irritants played a significant (or any) role in the development of COPD many years after service, particularly in light of his decade's long history of cigarette smoking, as well as occupational exposures documented in the post-service treatment records. The phrasing of their conclusions also fails to distinguish between qualifying and nonqualifying periods of service. In contrast, a VA examiner in June 2020, following a review of the claims file, opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's service treatment records were negative from any respiratory concerns, complaints, diagnosis or treatment. Further physical examinations while in the National Guard 1986 and 1990, were also silent for respiratory concerns and physical examination revealed no abnormalities. The Veteran was diagnosed with COPD in 2008. A February 2011 hospital note recorded a history of smoking 1/2 pack per day. In September 2013, he was admitted for a COPD exacerbation after being exposed to chemicals while stripping and waxing polyurethane floors. The examiner also noted a history of smoking cocaine daily for 20+ years, as a possible aggravating factor. The examiner noted the opinion of the RN in April 2014, and stated that she was not qualified to diagnose COPD or opine on its causation. There was no medical evidence to support a finding that the Veteran's COPD was due to his exposures during active duty service, ACDUTRA or INACDUTRA. Rather, the Veteran had a long history tobacco abuse, as well as smoking cocaine, for decades. Hospital notes showed that the Veteran was also using chemicals for his civilian work that caused his COPD exacerbation. His civilian work, tobacco abuse and smoking of cocaine abuse were more likely than not the cause of his COPD, as opposed to any exposure during military service. The examiner explained that while exposure to irritants could cause COPD, including cigar smoke, secondhand smoke, pipe smoke, air pollution, and workplace exposure to dust, smoke or fumes, in the vast majority of people with COPD, the lung damage that led to COPD was caused by long-term cigarette smoking. The Board finds the opinion of the VA examiner in June 2020 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred COPD as due to service. The examiner's findings were based on a review of the evidence, including the service and National Guard treatment records, and post-service treatment records, which did not substantiate a finding that the Veteran's limited exposure to lung irritants in service caused his currently diagnosed COPD. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that his COPD was due to service, to include any exposure to lung irritants therein. Finally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and are of significant probative value. Consequently, the Board finds the June 2021 VA medical opinion report more probative and outweigh the findings of the RN in 2014 and the VA examiner in January 2020. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In this regard, the Board must find that the service and post-service treatment records provide particular negative evidence against this claim. For claims received by VA after June 9, 1998, as is the case here, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service, including cigarettes, unless the disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. "Otherwise shown" means, in pertinent part, that (i) the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service; (ii) the disability became manifest or death occurred during service; (iii) the disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under 38 C.F.R. §§ 3.307, 3.309, 3.313, or 3.316. The evidence does not show that the Veteran's COPD manifested during active duty service or a period qualifying period of service. The weight of the evidence supports a finding that COPD initially noted many years after service, was associated with the Veteran's tobacco abuse disorder. To the extent the Veteran's COPD is attributable to his use of tobacco products, service connection may not be awarded as a matter of law. See id. The Board acknowledges the Veteran's contentions that his COPD should be service connected. The Board finds that the Veteran has not offered probative and competent evidence establishing a nexus between his COPD and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A diagnosis of a pulmonary disorder requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value. Overall, the Board finds this claim particularly limits the overall probative value of the Veteran's statement all claims. The Veteran is attempting to indicate that his limited service caused COPD and ignore his long history of smoking. In sum, the Board finds that COPD was not incurred in service and it is not otherwise related to service. Accordingly, service connection for COPD is not warranted. See 38 U.S.C. § 5107 (b); Gilbert, supra. 3. Entitlement to service connection for OSA The Veteran seeks service connection for OSA. Initially, the Board notes that a VA polysomnogram in June 2021 revealed mild OSA. The service treatment records reflect no complaints, history or findings consistent with OSA. Physical examinations while in the National Guard 1986 and 1990, were also silent for respiratory concerns and the Veteran denied a history of shortness of breath or frequent trouble sleeping. After service, treatment records in 2009 recorded an assessment of OSA. The record does not reflect that OSA was shown during a period of active duty or during a period of qualifying National Guard service. Based on the above, the Board must conclude that OSA did not have its onset during active duty service or during a period of qualifying National Guard service and has not been continuous since that time. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran has asserted continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records and post-service treatment records, which fail to document any related complaints until 30 years after active duty service and 15 years after discharge from the Army National Guard. See Owens, supra. Accordingly, the question in this case becomes whether the current OSA is etiologically related to service. On this question, the preponderance of the evidence is against the claim. On VA examination in October 2020, the Veteran reported experiencing hypersomnolence during the daytime, extreme snoring at night, headache and sore throat. He underwent a sleep study in 2010, that revealed OSA. In an addendum opinion report in July 2021, a VA examiner, following a review of the claims file, opined that the Veteran's OSA was less likely than not incurred in or caused by service. The examiner noted that a review of the service treatment records failed to document any evidence of a diagnosis or treatment for OSA or diagnostic polysomnography while on active duty. The examiner noted that observed snoring, unrestful sleep, "gasping", "trouble sleeping", shallow breathing or insomnia were not pathognomic for sleep apnea. Sleep apnea was diagnosed by polysomnography, apnea/hypoxia index (AHI or PRDI) was the diagnostic standard for OSA. An AHI >5 or PRDI >15 was indicative of OSA. Here, the Veteran was not diagnosed with OSA until many years after discharge from service. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that the Veteran's OSA, which was not shown in service, and was initially noted after 2009, was not related to service. The examiner cited to the medical literature and specifically addressed lay statements submitted in support of the claim. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record. The Board finds this opinion highly probative. See Nieves-Rodriguez, 22 Vet. App. at 304. Significantly, there is no competent medical opinion of record linking the Veteran's OSA to service. The Veteran is certainly competent to report as to the observable symptoms, experiences and their history, but the ultimate questions in this case are related to 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. Therefore, while the Veteran may have had sleep and snoring problems during active duty service, the Veteran has not been shown to be competent to state that these were symptoms of OSA. The Board finds that the specific, reasoned opinion of the VA examiner in July 2021 is of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which she relied to form the opinion, and the examiner provided a rationale for the conclusion reached. For the reasons set forth above, the Board finds that the most probative evidence weighs against a finding that the Veteran's OSA is related to service. Thus, service connection for OSA is denied. As such, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b). 4. Entitlement to service connection for RLS The Veteran seeks service connection for RLS. Reportedly, he was diagnosed with the disability during service. The service treatment records contain no complaints, history or findings consistent with RLS. Additionally, there are no treatment records contemporaneous with service that reflect the claimed condition. The post-service treatment records also fail to document a diagnosis or treatment for RLS. On VA examination in October 2020, the Veteran reported being diagnosed with RLS during service. He stated that the condition had onset in 1989. Examination revealed no abnormalities consistent with RLS. Muscle strength was normal throughout the lower extremities. There was no muscle atrophy. Deep tendon reflexes were reduced at the knees and ankles. Although a diagnosis of RLS was noted, presumably based on the history reported by the Veteran, a VA examiner in July 2021 reviewed the medical evidence of record, including diagnostic testing, and concluded that a diagnosis of RLS was not indicated as clinical testing, to include a polysomnogram in June 2021, failed to disclose any significant leg movements during sleep. Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has RLS. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. §§ 1131 requires existence of present disability for VA compensation purposes). The Board notes the Veteran's statements regarding his in-service symptoms and reports of ongoing manifestations, as well as his recollection as to what his providers told him about his diagnosis, which he is competent to report. However, the Veteran's lay statements must be weighed against the other evidence of record. See Jandreau, supra. To the extent the Veteran asserts that he has RLS associated with service, the Board notes that the diagnosis of RLS, requires clinical testing and medical expertise, and cannot simply be diagnosed by lay observation alone. The Board notes that the Veteran has not provided a medical opinion nor supported his contentions with any examination reports or findings that he has RLS due to service. Compared to the VA examination reports of record, the June 2021 VA examiner reviewed the claims file, examined the Veteran, and provided an opinion with rationale. Here the Veteran has only provided bare assertions which are outweighed by the medical examinations of record, as well as the service and post service treatment notes. The Board finds that the objective medical evidence is more probative than the lay statements of record. (Continued on the next page) Simply stated, the best evidence in this case provides evidence against the existence of a current "disability" diagnosed as RLS. Therefore, as no diagnosed RLS is shown at any time during the period on appeal, the Board concludes that the preponderance of the evidence is against the claim, and service connection is denied; the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.