Citation Nr: 18154537 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-07 403 DATE: December 4, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The evidence is insufficient to show that the Veteran’s sleep apnea had its onset or is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from July 2009 to November 2009, as well as May 2011 to May 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office. The Veteran contends that he “did not have sleeping issues before active duty and now,” he snores and wakes up fatigued and gasping for air. The Veteran and his wife have also provided a detailed account of the Veteran’s sleep apnea symptoms during his January 2016 and June 2013 VA examinations, but no additional theories of causation for his sleep apnea were postulated. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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). To determine whether this nexus requirement has been satisfied, the Board is obligated to review the entirety of the record and interpret veterans’ claims liberally; however, need only make reasonable efforts to corroborate claims, and not search the record to raise arguments in a veteran’s stead. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran’s claim for sleep apnea was originally denied in January 2014 due to there being no clinical diagnosis. The Veteran then obtained a VA examination in January 2016; however, since the Veteran had not participated in a sleep study, which is required to be diagnosed with sleep apnea, the VA examiner was compelled to state that the sleep apnea was less likely than not related to service. Subsequently, a sleep study was performed in October 2016 by a private physician who then diagnosed the Veteran with mild sleep apnea. The private physician recommended a CPAP and that the Veteran lose weight to treat the sleep apnea. Despite the evidence showing a clinical diagnosis of sleep apnea, the issue that remains disputed is whether the Veteran’s sleep apnea had its onset in service or is otherwise related to service. To this end, the preponderance of the evidence is against the claim. Most significantly, the record does not indicate that the Veteran suffered from any sleeping problems during service that were not attributed to other intermittent injuries sustained during service or events. In fact, not only are the Veteran’s service treatment records silent to any possible indications of sleep apnea, the Board notes that the Veteran specifically denied having any difficulties sleeping in his Report of Medical History at separation from service. His separation examination also revealed no evidence of sleep apnea. Furthermore, the Veteran also has made no indication during the appellate period that the sleep apnea was triggered by any of his other service-connected disabilities or presented evidence showing its onset during service. The Veteran recently submitted an appellate brief expanding upon his initial bases for seeking entitlement to service-connected sleep apnea, by explicitly stating the disability was “incurred in service or is the result thereof based on his duties and exposures as a combat engineer.” Interpreting this language to indicate a direct causal nexus between the diagnosed sleep apnea the Veteran’s service record, alongside the Veteran’s lack of statements both during service and his exit examination, weigh against finding that there is an in-service incident or nexus that caused the sleep apnea to manifest. The Board also acknowledges that the Veteran’s brief tends to suggest a presumptive service-connection based on the Veteran’s service within the Gulf War, but finds that the Veteran’s diagnosis of sleep apnea and lack of a qualifying chronic disability defeat any presumption of service-connection. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2). Therefore, the Board finds that the evidence is insufficient to find a nexus between the Veteran’s sleep apnea disability and service. While the Veteran was recently diagnosed with sleep apnea, after reading the service treatment record in conjunction with the Veteran’s statements–or lack thereof–and medical examinations within the record, the Board must deny service-connection for sleep apnea in lieu of seeking an additional medical examination. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this instance. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lherault, Associate Counsel