Citation Nr: 18144085 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-36 128 DATE: October 23, 2018 ORDER Entitlement to service connection for a heart disability, claimed as atrial fibrillation, is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. A heart disability, including atrial fibrillation, was not manifest in service nor was it demonstrated within the one year following separation from service, nor has it been shown to be related to service. 2. Sleep apnea was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. A heart disability, to include atrial fibrillation, was not incurred in or aggravated by service, is not attributable to service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 2. Sleep apnea was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to September 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The matters are currently under the jurisdiction of the New York RO. Service Connection The Veteran contends, without specificity, that he is entitled to service connection for a heart disability and sleep apnea. For the reasons explained below, the Board finds that service connection is not warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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 the so called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Here, the Veteran was not afforded VA examinations in connection with either of his claims and the Board finds that he is not entitled to any. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed below, even though there is evidence of current disabilities, there is no credible evidence of an “in-service event, injury or disease,” which would support incurrence or aggravation. Further, there is no indication that the current disability may be related to an in-service event. 1. Entitlement to service connection for a heart disability In the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent or more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. Cardiovascular disease is listed as a chronic disease. 38 U.S.C. § 1112 (a)(1). Here, there is evidence of a current disability. Records indicate that the Veteran was diagnosed with new-onset atrial fibrillation. However, service treatment records do not show a diagnosis of a heart disability nor are there any complaints of a heart disability for many years after service. In fact, August 2007 VA treatment records indicate that the Veteran developed new-onset atrial fibrillation in April 2007 – more than 20 years post service. The Veteran has not pointed to any evidence which the Board may relate his current heart disability to his active service. Further, the record does not reflect a cardiovascular disability during the one-year presumptive period after the Veteran’s separation from service. Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). As the preponderance of the evidence is against the claim for service connection for a heart disability, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for sleep apnea Here, there is evidence of a current disability. In November 2015, the Veteran submitted a sleep apnea disability benefits questionnaire which notes that the he was diagnosed with severe obstructive sleep apnea in September 2014. No nexus opinion regarding the etiology of the sleep apnea was noted. Service treatment records do not show a diagnosis of sleep apnea nor are there any complaints of a sleep apnea for many years after service. The Veteran has not pointed to any evidence which the Board may relate his sleep apnea to his active service. As the preponderance of the evidence is against the claim for service connection for sleep apnea, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel