Citation Nr: 18143619 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-03 887A DATE: October 19, 2018 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 2, 2014, and in excess of 50 percent thereafter is remanded. FINDING OF FACT 1. Sleep apnea was not incurred in, and is not etiologically related to, military service. CONCLUSION OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1974 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A March 2014 rating decision granted service connection for PTSD and assigned an initial 30 percent rating, effective April 15, 2013. A February 2016 rating decision, increased the rating to 50 percent, effective December 2, 2014. A January 2016 rating decision denied service connection for sleep apnea. As additional evidence was received within a year of the March 2014 rating decision that granted service connection for PTSD, the appeal has been characterized as an initial rating claim. See 38 C.F.R. § 3.156(b). 1. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea is related to his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran filed a claim of service connection for a respiratory illness due to exposure to asbestos in July 2014, which was denied in an unappealed November 2014 rating decision. While the Board acknowledges the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board does not consider the 2014 claim as one encompassing sleep apnea. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (holding a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury). Thus, the Veteran’s current sleep apnea claim is an original claim and not one to reopen a previously denied claim. The Veteran’s current diagnosis of sleep apnea is well documented in his VA treatment records. As such, the first element of service connection, a current disability, is satisfied. Although a current diagnosis has been established, there is no evidence of this condition in service or shortly thereafter, and no competent and probative evidence linking the current sleep apnea to service. See 38 C.F.R. § 3.303(a), 3.303(d). Service treatment records are negative for any diagnosis, complaints, treatment, or notations of sleep apnea, including upon an August 1977 discharge examination report. The Veteran’s DD Form 214 shows that he worked on the USS Peoria. Given the Veteran’s active Navy service aboard a naval ship, the Board resolves all reasonable doubt in his favor and concedes exposure to asbestos. However, the Veteran has not asserted, and there is no evidence to indicate, that his sleep apnea is related to his presumed exposure to asbestos. VA treatment records show the Veteran was first diagnosed with sleep apnea in October 2011. There is no competent and probative evidence linking the current sleep apnea to service. The Veteran has not been afforded with a medical examination in connection with his claim, but in the absence of any competent, credible evidence of a possible association with service, VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a medical opinion. He has not reported that his sleep apnea symptoms had onset during service and there is no indication that his sleep apnea may otherwise be related to service. The Veteran also has not asserted that his sleep apnea is secondary to any service-connected disability. Therefore, a VA examination or opinion is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). As the preponderance of the evidence is against the claim; the benefit of doubt doctrine is not for application. Service connection is not warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for PTSD prior to December 2, 2014, and in excess of 50 percent thereafter is remanded. Entitlement to a higher initial rating for PTSD was last adjudicated in a February 2016 statement of the case (SOC). The appeal was certified to the Board in August 2017. Additional and relevant VA treatment records, including March 2016 VA treatment records, were added to the claims file prior to certification to the Board in August 2017. A supplemental statement of the case (SSOC) was not provided prior to certification to the Board. Under 38 C.F.R. § 19.31, the AOJ will provide an SSOC to the appellant and his/her representative when there are any material changes in or additions to the information included in the SOC or any prior SSOC, to include receipt of additional pertinent evidence. If the pertinent evidence is received from a source other than the appellant or his/her representative prior to transfer of the case to the Board, solicitation of a waiver of AOJ review is not appropriate, and the case must be remanded for a new SSOC. 38 U.S.C. § 7105(e); 38 C.F.R. §§ 19.31, 19.37(a), 20.1304(c). On remand, the AOJ must issue an SSOC and reconsider the Veteran’s appeal in light of all newly received evidence since the February 2016 SOC. The matters are REMANDED for the following action: After undertaking any development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted in full, the Veteran and his representative must be furnished with an SSOC which reflects consideration of all evidence since the February 2016 SOC and afforded an opportunity to respond before the record is returned to the Board. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel