Citation Nr: 18159224 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-05 613A DATE: December 19, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s OSA had its onset in service or is otherwise related to any in-service disease, injury, or event. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to September 1969. Entitlement to service connection for obstructive sleep apnea (OSA) A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends that his OSA is due to his military service. The Veteran has a current diagnosis of obstructive sleep apnea. As such, element one under Shedden is met. Initially, the Board notes that the Veteran was sound upon entrance into service regarding a diagnosis of OSA. The Veteran’s service treatment records (STRs) do not document treatments, complaints, or diagnosis of sleep apnea or sleep issues. During his October 1966 Report of Medical history: Enlistment examination, the Veteran noted that he had frequent trouble sleeping. However, on his March 1968 Report of Medical History: Scuba examination and his July 1969 Report of Medical History: Separation examination, the Veteran did not note a sleep problem. Additionally, the examinations did not include a diagnosis of sleep apnea. Thus, even though symptoms of sleeping problems were expressed upon entrance into service, a specific sleep disability, especially OSA, was not noted upon entrance into service. Accordingly, the presumption of soundness attaches. In June 2004, the Veteran was seen at a private facility to undergo a sleep study. The examiner noted sever, central sleep disorder breathing with pattern of periodic breathing. A CPAP was recommended. In March 2016, the Veteran was diagnosed with OSA. In June 2016, the Veteran submitted a Sleep Apnea Disability Benefits Questionnaire (DBQ). The examiner confirmed the Veteran 2016 OSA diagnosis. Based on the evidence of record, the Board finds that service connection for OSA is not warranted. The Veteran’s STRs do not document complaints, treatments, or diagnosis for OSA. The first medical evidence of the condition was in 2004, i.e., over 35 years after his discharge from active service. The fact that there were no records of any complaints or treatments involving the Veteran’s OSA for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). The Board notes that a Sleep DBQ was submitted. However, the examiner did not provide an opinion or a rationale regarding the etiology of the Veteran’s OSA. Additionally, the medical evidence of record does not contain a nexus opinion relating the Veteran’s sleep apnea to his active service. Therefore, elements two and three under Shedden are not met. The Board has considered the Veteran, his representative’s and other lay statements regarding the etiology of the Veteran’s OSA. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s OSA and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of his OSA; however, an examination is not warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no credible indication of a link between the Veteran’s current condition and his active service. The first medical evidence of the Veteran’s OSA was in 2004, i.e., 35 years after active service. The only evidence of a possible connection between the Veteran’s disability and his service are the Veteran and his representative’s own broad and conclusory statements that the condition is related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). In the absence of a nexus, the claim for service connection for OSA is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). Michael Lane Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel