Citation Nr: 18157777 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-60 712 DATE: December 14, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The evidence does not show that sleep apnea had onset during active service, or is otherwise causally or etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Issues In August 2017, the then-representative withdrew from representing the Veteran. This withdrawal was post-cert and the representative did not provide a reason for withdrawal. See 38 C.F.R. §§ 20.608. In light of the RO removing the representative from representation and the Veteran being notified of this withdrawal and not responding, the Board will not further clarify the issue at this time and will consider the withdrawal effective under this procedural history. On this basis, the Board considers the then attorney’s privacy act request to not be active. The Board is sending inquiry to the RO regarding the status of the issues in a January 9, 2017 SOC, but as these issues are not certified at this time, declines appellate review at this time. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is directly related to his active service. Service treatment records are silent for complaints, treatments and diagnoses of sleep apnea. Post-service VA treatment records show that the Veteran reported problems with sleep in April 2006. In February 2008, he reported that pain interferes with sleep, and in December 2010, the Veteran reported that he was more stressed in his life and had difficulty sleeping; however, no diagnosis of sleep apnea was recorded at those times, nor is there indication that he underwent evaluation for sleep apnea. The first documentation of sleep apnea was in February 2011. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed disabilities for more than 15 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disability after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Upon review of the evidence, the Board finds that the preponderance of the evidence demonstrates that symptoms of sleep apnea were not continuous or recurrent since separation from active duty service in March 1993. Further, the evidence does not show that sleep apnea was incurred in, or aggravated by service. Thus, the most probative evidence fails to demonstrate that the Veteran’s sleep apnea had its onset during active service, or is otherwise causally or etiologically related to his active service. As such, service connection for a sleep apnea is not warranted. The Board acknowledges that the Veteran was not afforded a VA examination relating his sleep apnea claim. On these facts, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no in-service event, injury or occurrence, no examination is required. Absent evidence that indicates that the Veteran’s sleep apnea is related to an injury or symptoms in service, the Board finds that a VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran’s claim for entitlement to service connection for sleep apnea have been met. 38 C.F.R. § 3.159 (c) (4). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel