Citation Nr: 21075136 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-47 671 DATE: December 17, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea was not incurred in or aggravated by his active duty 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 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to July 1983 and he received the Sea Service Deployment Ribbon. In February 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The current appeal was previously before the Board in June 2020 and December 2020. The claim for service connection for sleep apnea was remanded each time for an adequate nexus opinion. Service Connection for Sleep Apnea The Veteran contends that service connection is warranted for sleep apnea. Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The evidence shows that the Veteran has a current disability. Specifically, the Veteran has been diagnosed with sleep apnea. See February 2014 VAMC Other, p. 1. Accordingly, the Board finds that the first element of service connection is established. See Holton, 557 F.3d at 1366. The Veteran has also presented sufficient evidence to establish the occurrence of an in-service injury or event. The Veteran's service treatment records are silent for complaints related to sleep apnea. However, the Veteran submitted buddy statements from family members that witnessed him having episodes of difficulty breathing, loud snoring, and gasping for air while asleep during his period of active duty service. See July 2013 Statement in Support of Claim, p. 1; July 2013 Statement in Support of Claim, p. 1; July 2013 Statement in Support of Claim, p. 1. Affording the Veteran the benefit of the doubt, the Board finds that the second element of service connection is established. See Holton, 557 F.3d at 1366. However, there is insufficient evidence to establish the element of nexus. In August 2021, the Veteran underwent a VA examination. See August 2021 VA Examination, pp. 1-7; August 2021 VA Examination, pp. 1-4. The examiner offered a negative nexus opinion and reasoned that the Veteran's medical records did not indicate chronic sleep apnea or other sleep problems during his active duty service. Moreover, the examiner noted that the 2012 sleep study results showed an extremely mild case of sleep apnea. These results contradict the notion advanced by the buddy statements that his sleep apnea onset 30 years prior because sleep apnea gets worse over time. Finally, the examiner indicated that the Veteran had other risk factors for sleep apnea, including obesity and age. The August 2021 opinion is based on the facts as demonstrated by the record and is supported by an adequate rationale; therefore, the Board finds it to be probative. (Continued on the next page) After careful consideration, the Board finds that there is insufficient evidence to establish a nexus. See Holton, 557 F.3d at 1366. In the absence of a nexus, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise for this service connection claim. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits"); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the Board is unable to award service connection for sleep apnea at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.