Citation Nr: 21013610 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-44 701 DATE: March 10, 2021 ORDER Entitlement to a rating in excess of 10 percent for a lumbar strain is denied. Entitlement to a rating in excess of 10 percent for compartment syndrome of the right lower extremity is denied. Entitlement to a rating in excess of 10 percent for compartment syndrome of the left lower extremity is denied. Entitlement to a compensable rating for hypertension with headaches is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is denied. Entitlement to service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. There is no evidence showing that the Veteran had good cause for the failure to report for VA examination scheduled for the purpose of determining the current nature and severity of his service-connected lumbar strain. 2. There is no evidence showing that the Veteran had good cause for the failure to report for VA examination scheduled for the purpose of determining the current nature and severity of his service-connected compartment syndrome of the right lower extremity. 3. There is no evidence showing that the Veteran had good cause for the failure to report for VA examination scheduled for the purpose of determining the current nature and severity of his service-connected compartment syndrome of the left lower extremity. 4. There is no evidence showing that the Veteran had good cause for the failure to report for VA examination scheduled for the purpose of determining the current nature and severity of his service-connected hypertension with headaches. 5. There is no evidence showing that the Veteran had good cause for the failure to report for VA examination scheduled for the purpose of determining the nature and etiology of his claimed acquired psychiatric disorder. 6. The Veteran’s acquired psychiatric disorder was not incurred in service, is not otherwise causally or etiologically related to service, is not caused or aggravated by his service connected disabilities and psychosis did not manifest within one year of service discharge. 7. There is no evidence showing that the Veteran had good cause for the failure to report for VA examination scheduled for the purpose of determining the nature and etiology of his claimed obstructive sleep apnea. 8. The Veteran’s obstructive sleep apnea was not incurred in service, is not otherwise causally or etiologically related to service and is not caused or aggravated by his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242. 2. The criteria for a rating in excess of 10 percent for compartment syndrome of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1—4.14, 4.55, 4.56, 4.73, Diagnostic Code 5312. 3. The criteria for a rating in excess of 10 percent for compartment syndrome of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1—4.14, 4.55, 4.56, 4.73, Diagnostic Code 5312. 4. The criteria for a compensable rating for hypertension with headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1—4.14, 4.104, Diagnostic Code 7101. 5. The criteria for service connection for an acquired psychiatric disorder, to include as secondary to service connected disabilities, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to March 2002, December 2003 to March 2005, and October 2006 to June 2009, to include service in Southwest Asia. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction of this appeal is currently with the RO in Baltimore, Maryland. This case was most recently before the Board in December 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. Increased Rating Claims The Veteran generally asserts that his lumbar strain, compartment syndrome of the right and left lower extremity and hypertension are more severe than currently contemplated by the current ratings assigned. Specific argument in support of these claims have not been provided. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. Under 38 C.F.R. § 3.655(b), 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, but when a claimant fails to report without good cause for an examination scheduled in conjunction with a reopened claim or a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member, etc. 38 C.F.R. § 3.655(a). The Court of Appeals for Veterans Claims (Court) has held that the burden is upon VA to demonstrate that notice was sent to the claimant’s last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). The Court has held, however, that VA’s “duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. at 193. If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Id. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for VA purposes is a written notice sent to the claimant’s last address of record. See 38 C.F.R. § 3.1 (q). In this case, the Board remanded the issues of entitlement to increased ratings for a lumbar strain, compartment syndrome of the right lower extremity, compartment syndrome of the left lower extremity, and hypertension with headaches in December 2018 for the Veteran to be afforded examinations to determine the current nature and severity of his conditions. Thus, as the Board noted in the December 2018 remand, a VA examination was required to address the critical matters in this case. The examination was scheduled in connection with the claim, and 38 C.F.R. § 3.655(b) is for application. The Board notes that the Veteran’s claims were previously remanded by the Board because he failed to appear for scheduled VA examinations. The Veteran was again scheduled for VA examinations, and again failed to appear. Specifically, the Veteran failed to appear for the VA examinations scheduled in March 2019. The August 2020 Supplemental Statement of the Case (SSOC), which described his failure to report for the examinations, was mailed to his last known address of record and was not returned undeliverable. To this date, the Veteran has not reported he did not receive notice of the examinations, provided good cause as to why he did not appear for the examinations, or requested that the examinations be rescheduled. Notably, the Board notes the Veteran attended unrelated VA examinations scheduled in January 2020. Given the presumption of regularity of the mailing of the VA examinations scheduling notice, and the fact that the Veteran has not provided a reason for his failure to report, the Board is satisfied that the Veteran received notice of the examinations and failed to report to the scheduled VA examinations without good cause. Although the examinations were scheduled in order to assist the Veteran with the development of his claims, he did not appear and there is a lack of any competent medical evidence showing that he has any acquired psychiatric disorder due to his service. As a result of the Veteran’s failure to appear at the examination, the medical evidence of record continues to reflect that he meets the criteria for a 10 percent rating for lumbar strain, but no higher; a 10 percent rating for compartment syndrome of the right lower extremity, but no higher; a 10 percent rating for compartment syndrome of the left lower extremity, but no higher; and a noncompensable rating for hypertension with headaches. Accordingly, as he failed to appear for examinations scheduled in conjunction with his claims for increase, the claims for an increased rating for the lumbar strain, compartment disorder of the right lower extremity, compartment disorder of the left lower extremity, and hypertension with headaches must be denied. See 38 C.F.R. § 3.655(b). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record reflects an opinion from Dr. H.H.-G. that the Veteran’s depressive disorder prevented him from maintaining substantially gainful employment. The Board notes that the Veteran has not been granted service connection for depressive disorder or other acquired psychiatric disorder. The Veteran has not alleged, and the lumbar strain, compartment disorder of the right lower extremity, compartment disorder of the left lower extremity, and/or hypertension with headaches prevented him from obtaining or maintaining gainful employment. Therefore, the Board finds that a TDIU is not raised by the Veteran or reasonably raised by the record in connection with his increased rating claims decided herein and, consequently, no further consideration of such is necessary at this time. Service Connection Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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. Acquired Psychiatric Disorder The Veteran seeks to establish service connection for an acquired psychiatric disorder. Specifically, the Veteran and his attorney assert that the Veteran’s service connected disorders were more likely than not causing his depressive disorder. See Third Party Correspondence, November 18, 2016; see also Appellate Brief, December 17, 2020. The Veteran submitted this initial claim for service connection for an acquired psychiatric disorder in February 2013. The AOJ denied service connection for PTSD in a March 2014 rating decision based on a finding that there was no evidence of a current clinical diagnosis of PTSD that began during his active service. In connection with this claim, VA obtained updated VA treatment records showing diagnoses of alcohol use disorder, PTSD, generalized anxiety disorder, insomnia with sleep apnea, and other unspecified adjustment reaction. See e.g. VA treatment record, January 20, 2016. The Veteran’s service treatment records (STRs) are conflicting for complaint of, treatment for, or clinical diagnosis of any psychiatric disabilities during active service. Significantly, a February 2009 STR indicates the Veteran did not have any psychiatric diagnosis or condition on Axis I or II, but indicated the Veteran’s problem list included an adjustment disorder. However, the Board notes that in a January 2009 report of medical history, the Veteran denied any nervous trouble of any sort (anxiety or panic attacks); habitual stammering or stuttering; loss of memory or amnesia or neurological symptoms; frequent trouble sleeping; that he had received counseling of any time; depression or excessive worry; that he had been evaluated or treated for a mental condition; that he had attempted suicide; and that he had used illegal drugs or abused prescription drugs. Additionally, the Board notes an April 2009 physical disability evaluation system (PDES) commander’s performance and functional statement indicates that the Veteran did not interact well with peers or superiors, and had been reduced for disrespect to a non-commissioned officer. At a May 2009 general medical VA examination, in pertinent part, the examiner noted that there was no evidence of extreme psychological problems, nor evidence of suicidal ideation noted on examination. Of the eight diagnoses rendered, the examiner did not diagnosis any acquired psychiatric disorder at that time. A January 2010 VA treatment record indicates the Veteran did not have PTSD, did not appear to be at all depressed, and was anxious about his sleep but indicated that his medication had helped. The Veteran was not interested in, nor did he seem appropriate for, enrollment in Trauma Services. The treatment provider diagnosed adjustment disorder unspecified. A May 2014 VA opinion indicates that the Veteran had not been fully evaluated for a diagnosis of PTSD, and that such diagnosis would require an initial evaluation for PTSD. The examiner noted that currently, the information and diagnoses appear circumstantial and only provided limited information. Of record is an August 2016 private psychiatric evaluation by Dr. H.H-G. At this time, Dr. H.H-G. diagnosed depressive disorder due to another medical condition with depressed features. The Veteran reported that he did not have a mental health history prior to the military and that he was prescribed psychiatric medications. He reported the medicine did not work, that he saw a psychiatrist twice a year, and denied participation in therapy and VA group therapy. After an interview with the Veteran, and a review of medical journal articles supporting the Veteran’s claim, Dr. H.H-G. opined that the Veteran’s low back disorder, muscle disorders of the bilateral lower extremities, left foot sprain, residuals of nose fracture, and hypertension with headaches were more likely than not causing his depressive disorder due to another medical condition and preventing him from maintaining substantially gainful employment. In this regard, she noted that the medical literature detailed a connection between medical issues, such as the issues the Veteran had, and a causal relationship between the two. However, in its December 2018 Board remand, this opinion was found to be inadequate because the opinion was unclear. Additionally, the Board finds that the August 2016 private opinion is inadequate to decide the claim because it does not provide supporting rationale for the conclusions reached, nor did the opinion reconcile the conflicting evidence of record regarding the Veteran’s acquired psychiatric diagnoses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion is therefore afforded little, if any, probative weight. In its December 2018 remand, the Board remanded this claim for additional development, noting that the Veteran had previously failed to appear for scheduled VA examinations. As such, the Board directed the AOJ to schedule the Veteran for an examination with an appropriate clinician to determine whether any current psychiatric disorder is related to the Veteran’s military service. As noted above, per the December 2018 Board remand instructions, VA scheduled the Veteran for a VA psychiatric examination. The Veteran failed to report for the scheduled VA examination without explanation. As above, when a claimant fails without good cause 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. Upon review of the above evidence, the Board finds that service connection for an acquired psychiatric disorder is not warranted on a presumptive basis. Initially, the Board notes that while psychoses is included as a chronic condition under 38 C.F.R. § 3.309(a), there is no indication from the record that the Veteran has been diagnosed with a psychosis, let alone diagnosed with a psychosis, or any other acquired psychiatric disorder within one year of his separation from active service. As such, presumptive service connection on the basis of continuity of symptomatology is not warranted for the Veteran’s acquired psychiatric disability. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. First, there is no evidence of psychiatric problems in service. Although the STRs are somewhat conflicting, as detailed above, the Veteran’s specifically denied “frequent trouble sleeping,” “depression or excessive worry,” and “nervous trouble of any sort” in January 2009. Additionally, there is no record of psychiatric problems until August 2016, approximately seven years after the Veteran’s discharge from military service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no medical evidence in the record that links the Veteran’s claimed acquired psychiatric disorder to an incident of the Veteran’s active military service. While a medical examination and opinion would have been helpful with regard to this claim. VA has been unable to obtain such an examination/opinion. As above, given the Veteran’s failure to report for the scheduled examination, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. While the Veteran is competent to report symptoms such as anxiety or difficulty sleeping, he is not competent to provide an opinion linking any acquired psychiatric disorder diagnosis to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Nevertheless, the Board notes the assertions of the Veteran and his attorney that his service-connected disorders are more likely than not the cause of his depressive disorder. Specifically, the Veteran’s attorney points to the August 2016 private evaluation opinion submitted by Dr. H.H-G. that the Veteran’s depressive disorder was caused by his low back disorder, muscle disorders of the bilateral lower extremities, left foot sprain, residuals of nose fracture, and hypertension with headaches. However, no rationale or explanation was provided for these assertions; and as discussed above, the August 2016 private psychiatric opinion is inadequate to decide the claim. These arguments are therefore without merit. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.655(b); Gilbert v. Derwinski, supra. 2. Obstructive Sleep Apnea The Veteran seeks to establish service connection for obstructive sleep apnea. Specifically, the Veteran and his attorney assert that the medication used to treat his service-connected physical conditions and rhinitis aided in the development of and permanently aggravated his obstructive sleep apnea. See Third Party Correspondence, November 18, 2016; see also Appellate Brief, December 17, 2020. Additionally, they assert that the Veteran has difficulty using his continuous positive airway pressure (CPAP) machine regularly, which greatly aggravates the effects of his obstructive sleep apnea. Id. The Veteran’s service treatment records are unremarkable and silent for complaints of, treatment for, or diagnosis related to obstructive sleep apnea or any sleep related disorder. Post-service treatment records confirm a diagnosis of obstructive sleep apnea. See e.g. VA treatment record, March 8, 2010. Of record is an October 2016 private etiology opinion provided by Dr. H.S. At that time, the Veteran reported he had difficulty wearing his CPAP mask due to his mental health condition. The Veteran reported that he his prescribed medications made it possible to fall asleep but that his mental health symptoms made him feel claustrophobic and he could not tolerate the CPAP mask for more than a few hours. Dr. H.S. noted this was common with patients who had mental health diagnoses and noted that research showed psychiatric disorders were commonly associated with obstructive sleep apnea. Additionally, Dr. H.S. noted the Veteran was service connected for a low back disorder and bilateral lower extremity muscle disorder, and was prescribed Tramadol for treatment. Tramadol is an opiate that was shown to cause abnormal awake ventilatory responses. Dr. H.S. further noted the Veteran’s obstructive sleep apnea was complicated by his rhinitis, which developed in service and continued to be a chronic problem; this resulted in difficulty breathing and no tolerance for the CPAP mask whatsoever. Therefore, Dr. H.S. opined that it was at least as likely as not that the Veteran’s depression, prescribed use of opiate medication, and rhinitis aided in the development of and permanently aggravated his obstructive sleep apnea. However, in its December 2018 Board remand, this opinion was found to be inadequate because the opinion provided a secondary nexus opinion that depression and rhinitis “aided in the development of and permanently aggravate” the Veteran’s obstructive sleep apnea. However, service connection is not in effect for depression nor rhinitis. Additionally, the Board finds that the October 2016 private opinion is inadequate to decide the claim because it does not provide supporting rationale for the conclusions reached. Barr v. Nicholson, supra; Stefl v. Nicholson, supra; Nieves-Rodriguez v. Peake, supra. This opinion is therefore afforded little, if any, probative weight. In the December 2018 Board remand, the Board remanded this claim for additional development, noting that the Veteran had previously failed to appear for scheduled VA examinations. As such, the Board directed the AOJ to schedule the Veteran for an examination with an appropriate clinician to determine whether any current obstructive sleep apnea is related to the Veteran’s military service. As noted above, per the December 2018 Board remand instructions, VA scheduled the Veteran for a VA examination. The Veteran failed to report for the scheduled VA examination without explanation. As above, when a claimant fails without good cause 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. Upon review of the above evidence, the Board finds that service connection for obstructive sleep apnea is not warranted on a direct basis. First, there is no evidence of obstructive sleep apnea or other sleep disorders in service. As noted above, the Veteran’s service treatment records are silent for any complaints of, treatment for, or diagnosis related to sleep apnea or any sleep related disorder. Finally, there is no medical evidence in the record that links the Veteran’s claimed obstructive sleep apnea to an incident of the Veteran’s active military service. While a medical examination and opinion would have been helpful with regard to this claim. VA has been unable to obtain such an examination/opinion. As above, given the Veteran’s failure to report for the scheduled examination, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. The claim is also denied on a secondary basis. In this regard, the Board notes that the October 2016 private opinion by Dr. H.S. indicates that the Veteran’s obstructive sleep apnea was aided in the development of and permanently aggravated by depression and rhinitis. However, as noted above, service connection is not in effect for either depression or rhinitis. Again, while a medical examination and opinion would have been helpful with regard to this claim. VA has been unable to obtain such an examination/opinion. As above, given the Veteran’s failure to report for the scheduled examination, the claim shall be rated based on the evidence of record. Id. While the Veteran is competent to report symptoms such as sleep difficulty, he is not competent to provide an opinion linking any obstructive sleep apnea diagnosis to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Nevertheless, the Board notes the assertions of the Veteran and his attorney that his depression, rhinitis, and difficulty using a CPAP machine more likely than not permanently aggravated and developed his obstructive sleep apnea. Specifically, the Veteran’s attorney points to the October 2016 private evaluation opinion submitted by Dr. H.S. However, no rationale or explanation was provided for these assertions; and as discussed above, the October 2016 private opinion is inadequate to decide the claim. These arguments are therefore without merit. (Continued on the next page)   Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.655(b); Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.