Citation Nr: 22013017 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-01 031 DATE: March 8, 2022 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran's obstructive sleep apnea was not present in service or for many years thereafter, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2019. A transcript of the hearing has been associated with the file. This matter was previously remanded by the Board in August 2019 for further development. A review of the record indicates that the Board's directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At the outset, the Board notes that many of the Veteran's contentions regarding his sleep difficulty appear to be tied to his service-connected posttraumatic stress disorder (PTSD). At his August 2016 VA examination, sleep disturbance was noted as a symptom his PTSD. In the August 2016 rating decision on appeal, the Veteran was awarded service connection for PTSD and a 50 percent rating was assigned. (He also was denied service connection for sleep problems.) In his NOD, the Veteran appealed the denial of service connection for sleep difficulties. That claim was denied because there was no evidence of a diagnosed sleep disability in service. In response, the Veteran submitted evidence of a diagnosis of obstructive sleep apnea. As the Veteran never appealed the assigned rating for PTSD, and submitted evidence of a diagnosis of obstructive sleep apnea in support of his claim for service connection for a sleeping problem, the Board concludes that the only issue on appeal is entitlement to service connection for obstructive sleep apnea. Service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea is due to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury or disease. Private treatment records show the Veteran was not diagnosed with obstructive sleep apnea until December 2006, thirty-five years after his separation from service. The Veteran has not otherwise contended that such disability was present prior to then, let alone in service. (Continued on the next page) Further, the September 2021 VA examiner opined that the Veteran's obstructive sleep apnea is not at least as likely as not related to an in-service injury or disease, since it was first diagnosed 35 years after service. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that is clear and corresponds with the Veteran's history. No probative evidence links the claimed disability with service, or a service connected disability. The Veteran believes his obstructive sleep apnea is related to an in-service injury or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the probative medical evidence of record. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, 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.