Citation Nr: 21076099 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-03 476 DATE: December 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The most probative evidence of record does not show that OSA is related to an in-service injury, illness, or event. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1992 to December 1999; September 2008 to February 2009; and from July 2018 to February 2019. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In July 2019, the Board remanded this issue for further development. Also, in the July 2019 decision, the Board granted service connection for tinnitus. It does not appear that the RO implemented the Board's July 2019 grant. Indeed, on the most recent April 2020 rating code sheet, tinnitus is shown as "not subject to service connection." The RO is directed to issue a rating decision in order to implement the grant of benefits as indicated in the Board's July 2019 decision. 1. Entitlement to service connection for OSA Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). The Veteran asserts that his OSA is due to his military service. He reports that sleep apnea was first diagnosed while he was in service. His wife reported that she noticed the Veteran's difficulty with sleeping beginning in 1996 and he has experienced such since service. The record contains a current diagnosis of sleep apnea. See July 2014 private treatment record. Thus, the first element is satisfied. A review of the Veteran's service treatment records (STRs) is negative for any showing of complaints, treatment, or diagnoses for sleep apnea. All the available entrance and exit examinations were also silent for sleep apnea. Pursuant to the July 2019 Board remand, the Veteran was examined in December 2019. The examiner diagnosed sleep apnea and indicated that sleep apnea was at least as likely as not incurred in or caused by the claimed inservice injury, event, or illness. She stated that considering the history as related by the Veteran, current examination, and review of the medical records it is likely due to service. She noted that the Veteran denied a sleeping disorder/respiratory disability on his enlistment examination on February 1992. The examiner found that there is documentation during service to support a sleep apnea condition that developed during service because a February 2019 STR documents that sleep apnea is listed in the Veteran's past medical history and is therefore enough evidence to support OSA that is due to an event, injury, or disease during service including sleep apnea during service. The RO requested clarification of the December 2019 opinion, as the examiner relied on medical evidence outside a period of service. In a September 2021 clarification opinion, the examiner indicated that the Veteran's sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. He reasoned that the Report of medical history and examinations in February 1992, April 1996, and March 2001 did not reveal history or physical examination findings for ongoing acute or chronic treatment of a sleep apnea condition. He noted that the December 2019 VA examination documents diagnosis of obstructive sleep apnea confirmed with sleep study on June 2014. The examiner indicated that his medical record review did not reveal continuous ongoing medical treatment or aggravation of acute or chronic sleep apnea disability during time of discharge from active military service to the present day. The September 2021 VA medical opinion is the most probative evidence of record because it is based on a review of the Veteran's medical history, as well as the clinical findings documented in treatment records, and the symptomatology reflected in the medical and lay evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. There is no competent opinion to the contrary. The Board acknowledges the December 2019 positive VA opinion but notes that such lacks adequate rationale. Indeed, the December 2019 VA examiner indicated that her opinion was based on a February 2019 STR that documents a history of sleep apnea, and thus service connected was warranted. The Board observes that a record showing a history of a disability is not sufficient evidence to establish service connection showing that the disability occurred while on active duty. As such, this opinion is afforded very little probative value. Although the Veteran and his wife are competent to report that he experienced symptoms of loud snoring, episodes of choking while snoring, daytime somnolence, dyspnea, tiredness, fatigue, and decreased stamina, they are not competent to determine that these symptoms were manifestations of sleep apnea related to his military service, to include an in-service illness, injury, or event. The issue is medically complex, as it requires knowledge of medical causation and the interpretation of complicated diagnostic medical testing. Moreover, the September 2021 examiner considered such lay reports in finding no link to his military service. Even assuming the Veteran had the in-service symptoms as reported, absent competent evidence linking the Veteran's current sleep apnea to his claimed symptoms in service, service connection must be denied. Consequently, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.