Citation Nr: 21074189 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-45 541 DATE: December 14, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of evidence is against finding that the Veteran had a diagnosis of obstructive sleep apnea at any time approximate to the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2006 to February 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in July 2021 when it was remanded for additional development. It has returned for adjudication. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder The Veteran asserts that he has obstructive sleep apnea that had its onset during his period of active service. Alternatively, he claims that such is secondary to his service-connected posttraumatic stress disorder (PTSD). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be awarded on secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Turning to the record, there is conflicting evidence with respect to the presence of a currently diagnosed sleep apnea disability. Notably, the requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran's service treatment records include a complaint in December 2014 that he had nightmares and he thought that was the reason he often awakened gasping for air. He was referred for a sleep study, but in January 2015 the Veteran was notified that there was no evidence of sleep apnea. Post-service treatment records include complaints of difficulties with sleep in September 2015 that he associated with mental health issues. He reported difficulty falling and staying asleep. During a VA examination in December 2015, the Veteran stated he was referred for a sleep study based on symptoms of insomnia. The records indicated that there was no evidence of significant sleep disordered breathing or other sleep fragmenting process during the sleep study. The Veteran submitted a July 2017 statement he received indicating that a recent sleep study revealed that he had sleep apnea. The statement continues that the Veteran had an average of 2.6 breathing pauses or episodes of shallow breathing per hour and that the normal value is fewer than 5 events per hour. However, before he would be given a CPAP, he would have to complete an additional sleep study in the Sleep Center. The July 2017 medical records note that the in-lab study demonstrated snoring without evidence of obstructive sleep apnea. In September 2017, the Veteran reported to a sleep medicine clinic describing daytime sleepiness. The clinic notes indicate that the sleep study did not detect sleep apnea, so he was scheduled for an additional study. The physician noted that he would coordinate care with the Veteran's psychiatrist regarding his sleep complaints. The Veteran was afforded an additional VA examination in February 2020. At that time, the Veteran reported that he began having trouble going to sleep in 2014 and that he would wake up after 2 hours with headaches. The examiner stated that the Veteran did not have a current diagnosis of sleep apnea based on the results of a June 2017 sleep study. A January 2021 VA examiner also noted that the Veteran did not have a current diagnosis and had never been diagnosed with sleep apnea. VA treatment records from March 2021 indicate that the Veteran underwent another sleep study in February 2021 and the results revealed that he did not have sleep apnea. Rather, he had an average of 2.7 breathing pauses or episodes of shallow breathing per hour, consistent with the normal value of fewer than 5 events per hour. An additional VA examination was obtained in September 2021 to address the conflicting evidence regarding a diagnosis of sleep apnea. After a review of the claims file and an examination of the Veteran, the examiner found that there was no chronic diagnosis of obstructive sleep apnea. The objective examination was normal, and the symptoms were subjective only. The examiner further noted that available records and the current examination were unable to confirm the diagnosis. After thorough review of the evidence of record, the Board concludes that the Veteran did not have a diagnosis of sleep apnea at any time during the pendency of the appeal. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The medical evidence of record does not show that the Veteran was diagnosed with sleep apnea. Although the Veteran has consistently reported insomnia and was even prescribed medication as needed, there is no evidence to suggest that treatment for sleep apnea was indicated. The Board is particularly persuaded by the medical treatment records interpreting sleep studies as normal and the VA examination reports finding that the Veteran has not been diagnosed with sleep apnea at any time. The Board has considered the statements of the Veteran regarding his difficulty sleeping. While the Veteran is competent to report frequent wakening or snoring, he is not competent to diagnose sleep apnea, as such requires clinical evaluation and the interpretation of diagnostic testing based on specialized medical education. Thus, his statements are not competent medical evidence and cannot constitute evidence upon which to grant the claim for service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Latham v. Brown, 7 Vet. App. 359, 365 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the preponderance of the evidence is against finding that the Veteran had a diagnosis of sleep apnea at any time proximate to the appeal period. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.