Citation Nr: 21070724 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-50 770 DATE: November 24, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's sleep apnea began during active service or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2001 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim was first before the Board in March 2019, at which time it was remanded for further development. Service connection for sleep apnea The Veteran reports that he complained about sleep issues upon returning from his deployment in Iraq in 2007 but was only given sleep medication and was not afforded a sleep study. He reports, "I woke up feeling like I got no sleep. I was always angry and tired but ... didn't know that there was even a thing called sleep apnea ...." The Veteran notes that during his deployment to Iraq his unit took part in burning trash and other wastes. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Thus, 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 first mention in the Veteran's medical records of sleep apnea as a possible condition is in a post-service record from December 2011, which notes "?OSA". The Veteran subsequently underwent a sleep study in March 2012. The report from the study does not contain a diagnosis, noting "There are a low number of apneic and hypopneic events but there is a very high number of respiratory effort related arousals seen on the nasal pressure channel of this study. If the patient has classic symptoms of sleep apnea, I would recommend treatment with auto-adjusting CPAP. The patient should be checked for reversible causes of upper airway obstruction and ENT referral should be considered if present." Records show that the Veteran was issued a CPAP machine in May 2012 and later medical records note "OSA using CPAP". The evidence is sufficient to establish the presence of a current disability for purposes of service-connection analysis; however, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. In an April 2007 Post-Deployment Health Assessment, on the question of "Still feeling tired after sleeping" the Veteran reported no. However, later service treatment records (STRs) show numerous complaints of sleep disturbances going back to December 2007. A typical record, from September 4, 2008, notes "difficulty falling asleep, middle-night awakening, early morning awakening, morning grogginess, nonrestorative sleep, and nightmares." Accompanying daytime somnolence and fatigue are also noted in the records. However, the preponderance of the evidence is against finding that these records show the onset of sleep apnea during service. The Veteran's in-service sleep complaints are recorded in his STRs as psychological symptoms. In a September 2008 record, the Veteran's psychiatrist also notes a possible link between sleep problems and alcohol use. Records note treatment of sleep complaints with medications including Remeron, Trazodone, and Seroquel. The Veteran now states that these medications did not help with his sleep disturbances and that the CPAP machine he now uses does help, suggesting an inference that his in-service sleep disturbances were from undiagnosed sleep apnea. However, the Board finds the Veteran's statement to be contradicted by his STRs. Records from August 2009 and January 2010 note "sleep is better with trazodone". A May 2010 record notes "sleep has been variable, but responsive to either Remeron or Trazodone." While the Veteran is competent to report his in-service sleep disturbances, he is not competent to provide a diagnosis in this case or to determine that these symptoms were manifestations of sleep apnea. The issue is medically complex, as it requires medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion regarding the presence of sleep apnea during service is not competent medical evidence. In March 2019 the Board remanded the Veteran's claim for an examination and medical opinion regarding the nature and etiology of the Veteran's sleep apnea. VA records show that an examination was scheduled but subsequently cancelled due to the Veteran's failure to report for the examination. The Veteran was advised of this fact in the April 2020 Supplemental Statement of the Case (SSOC). The Veteran has not indicated that he had good cause for missing the examination, and has not requested to reschedule the examination. Consequently, evidence that could have been helpful to the Veteran's claim could not be obtained. In sum, the Veteran failed to report for his scheduled examination and did not provide any additional evidence to support a link between his sleep apnea and his service. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Here, the preponderance of the evidence of record is against finding that the Veteran's claimed sleep apnea began during active service and there is no competent and probative medical opinion of record linking his current condition to service. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence of record is against the Veteran's claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.