Citation Nr: 21075744 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-49 515 DATE: December 21, 2021 ORDER Entitlement to service connection for sleep apnea, to include as due to exposure to contaminated water a Camp Lejeune is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's sleep apnea began during active service or is otherwise related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1975 to November 1979. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Entitlement to service connection for sleep apnea, to include as due to exposure to contaminated water a Camp Lejeune The Veteran contends his sleep apnea is due to exposure to contaminated water at Camp Lejeune. The Veteran has a current diagnosis of sleep apnea. See June 2021 VA Examination. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309 (f). Sleep apnea is not on this list. The availability of presumptive service connection for a disability based on contaminants exposure does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107 (a). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's personnel records confirm he served at Camp Lejeune during the prerequisite time period, and therefore exposure to contaminated water is conceded. However, it is very unclear as to how this problem could have been caused by this exposure. As noted above, sleep apnea is not one of enumerated diseases subject to presumptive service connection. The availability of presumptive service connection for a disability based on contaminants does not preclude a Veteran from establishing service connection with proof of direct causation. Therefore, the question before the Board is whether the Veteran's current sleep apnea disability began in service or is otherwise related to an in-service event, illness, or injury. The Veteran's service treatment records do not show any complaints, diagnoses, or treatment for sleep apnea while in service. The Veteran's sleep apnea was not diagnosed until 2014, 35 years post-service. The Veteran underwent a VA examination in June 2021. The VA examiner opined it was less likely than not that the Veteran's sleep apnea was incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the opinion of the June 2021 examiner to be adequate because the examiner was able to review the Veteran's files, see the Veteran in person when necessary, and offered explanations and rationales for the opinion offered. There is no other medical opinion to the contrary. While the Veteran believes his current sleep apnea is due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the June 2021 VA examiner's opinion and the 35-year gap before diagnosis. It is important for the Veteran to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his problem is the result of service, providing a highly clear basis for the opinion. (Continued on the next page) Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55-57. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, Associate 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.