Citation Nr: 21015057 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 20-07 982 DATE: March 16, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a heart condition is denied. Entitlement to service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that Veteran’s sleep apnea began during active service or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that Veteran’s heart condition began during active service or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that Veteran’s diabetes mellitus began during active service or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria to establish service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria to establish service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria to establish service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1973 to August 1975. Neither the Veteran nor his agent have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2019); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2019). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1) (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2019). The evidence does not show, nor does the Veteran assert, that his diabetes manifested within one year of separation from service. Therefore presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. The Veteran served during the Vietnam era. A “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent… unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” Service in the Republic of Vietnam under this provision includes service on the landmass and service on inland waterways. 38 U.S.C. § 1116(f). It also includes service in the offshore waters, which includes the territorial sea extending 12 nautical miles from the shores of that nation. 38 U.S.C. § 1116A; Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). Diabetes is a disease that is presumed to be associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). The Veteran does not assert that he served in the Republic of Vietnam, including in its territorial waters. He does not contend that he was otherwise exposed to herbicide agents. The evidence of record does not show that he was exposed to herbicide agents. Presumptive service connection for diabetes mellitus under 38 C.F.R. § 3.309(e) is not warranted. The Veteran’s June 1973 entrance examination does not note sleep apnea, diabetes mellitus, or a heart condition. Therefore the presumption of soundness attaches with respect to these disabilities. His August 1975 separation examination notes that the Veteran had a heart murmur “by history” since 1960 or 1961, and that it was asymptomatic. However, no heart condition manifested during service and therefore no discussion of whether the presumption of soundness may be rebutted is necessary. His service treatment records (STRs) show no evidence for any complaints, treatment, or diagnosis for sleep apnea or diabetes mellitus. Additionally, the Veteran has not submitted any lay evidence explaining why he believes that his disabilities are related to service. A February 2020 informal conference report notes that the Veteran’s “[r]representative agreed that there is no evidence of an in service event.” The Veteran has not been afforded a medical examination relating to his service connection claims. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i). Here, a VA examination under the standards of McLendon is not warranted because there is no probative evidence establishing that an event, injury, or disease occurred in service or establishing that his diabetes began within the presumptive period. As noted above, the Veteran’s representative acknowledges there was no in service event. Furthermore, the Veteran has not submitted lay evidence of an in-service event, injury, or disease, or symptoms thereof. Additionally, there is no probative evidence indicating that the Veteran’s sleep apnea, heart condition, or diabetes is related to any in-service incident or event. The Veteran has not provided a lay statement explaining why he believes these disabilities are due to service. Thus, the Board finds that examinations are not necessary to render a decision under the circumstances of this case, and service connection for his sleep apnea, heart condition, or diabetes is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.