Citation Nr: 18154748 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 14-19 808 DATE: November 30, 2018 ORDER The appeal concerning entitlement to service connection for a low back disorder is dismissed. The appeal concerning entitlement to service connection for a right knee and lower leg disorder is dismissed. The appeal concerning entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. In September 2018, prior to the promulgation of a decision on the issues of entitlement to service connection for a low back condition, entitlement to service connection for a right knee and lower leg condition, and entitlement to service connection for PTSD, the Veteran withdrew his appeal. 2. The evidence is in equipoise as to whether the Veteran’s sleep apnea is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal as to the issues of entitlement to service connection for a low back condition, entitlement to service connection for a right knee and lower leg condition, and entitlement to service connection for PTSD, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Resolving doubt in the Veteran’s favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to May 2006 and from January 2008 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In September 2018, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, and stated that he wished to withdraw all pending appeals with the exception of the appeal for sleep apnea. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues of entitlement to service connection for a low back condition, entitlement to service connection for a right knee and lower leg condition, and entitlement to service connection for PTSD, and they are dismissed. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Sleep Apnea The Veteran received a VA examination in December 2013 and the examiner noted a current diagnosis of obstructive sleep apnea from November 2012. At the time of the diagnosis, the Veteran’s body mass index (BMI) was 34.8 and he weighed 253 pounds. Based on the examination results, the examiner concluded that it was less likely as not that the Veteran’s sleep apnea was a result of or an aggravation of events which occurred while in service. She indicated that obesity was the best documented risk factor for the condition, and highlighted the Veteran’s elevated BMI at the time of the diagnosis. Furthermore, the Veteran’s service treatment records did not document any evaluations or treatments for a sleep disorder while in service. The Veteran’s private physician, Dr. S. S., submitted correspondence in April 2018 and indicated that he reviewed the Veteran’s records and also conducted a phone interview. The physician noted that the Veteran injured his ankle during service, which resulted in significant weight gain because he was unable to engage in significant physical activity. The Veteran described episodes reported by his wife in which he snored loudly and had periods of respiratory disruption. He tried to use a CPAP machine, but it was less effective due to his nasal congestion from his allergic rhinitis. Dr. S. S. further noted that obstructive sleep apnea was complex and multifactorial, but nasal obstruction was a common contributor. Furthermore, there was a strong link between excessive weight gain in the development of the condition. As a result, Dr. S. S. concluded that it was more likely than not that the combination of the Veteran’s allergic rhinitis-related nasal obstruction and significant weight gain following his ankle injury during service led to the development of obstructive sleep apnea. A receipt VHA opinion is against a relationship between the Veteran’s sleep apnea and service but is found to be based on a very limited rationale and therefore of little probative value. The Board finds the evidence to be in at least equipoise in this case, as Dr. S. S. indicated that the Veteran’s service-connected disabilities, specifically his allergic rhinitis and ankle strain, led to the development of his sleep apnea and the December 2013 examiner at least agreed that it was likely caused by his elevated BMI. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. The Board finds that the evidence is at least in equipoise regarding whether the Veteran’s sleep apnea is related to service, and that service connection for this disability is therefore warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel