Citation Nr: 22006288 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 17-38 070 DATE: February 3, 2022 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's currently diagnosed obstructive sleep apnea began during active service or is otherwise related to an injury or disease in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to March 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied service connection for sleep apnea syndromes. The Veteran's notice of disagreement was received in November 2016. The RO issued a statement of the case in July 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in July 2017. The Veteran's request for a Board hearing was withdrawn by his representative in November 2021. 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he has obstructive sleep apnea that is attributable to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After careful consideration of the evidence, the Board concludes that, while he has a diagnosis of obstructive sleep apnea, the evidence of record persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. It is not in dispute that the Veteran has a current disability. VA treatment records clearly show that in July 2015, many years after his discharge from service in March 1970, the Veteran underwent a sleep study that disclosed a finding of severe obstructive sleep apnea. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). This is the initial diagnosis of the disability, and there is no evidence of an earlier diagnosis, nor does the Veteran claim he received a diagnosis prior to July 2015. Notably, the Veteran does not allege the onset of the disability was during his period of active service. Lay evidence of record includes statements received in July 2016 from the Veteran's sister and in December 2016 from the Veteran's wife. His sister asserted that the Veteran lived with her for five years after his discharge from service at which time she noticed a dramatic change in his sleeping habits to include loud snoring, and shallow breathing that would sometimes stop all together. His wife with whom the Veteran met in September 1991 observed the same sleeping habits described by the Veteran's sister. Service treatment records (STRs) are silent as to any complaints, diagnosis or treatment for any sleep problems during service. Specifically, the Veteran reports no sleep issues at the time of his March 1970 separation examination. While the Veteran's sister and wife are competent to report having witnessed symptoms such as the Veteran's loud snoring and breathing irregularities while sleeping since the Veteran's service, they are not competent to provide a diagnosis in this case or determine that the Veteran's symptoms, were manifestations/signs of the presence of obstructive sleep apnea. The issue is medically complex, as it requires knowledge of the pathology of obstructive sleep apnea and the interpretation of complicated diagnostic medical testing (i.e., a sleep study) to confirm the presence of the disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Neither the Veteran's sister or wife is shown to possess such specialized medical knowledge, nor have they claimed to have such knowledge. Finally, the Veteran was not afforded a VA examination in conjunction with his claim for service connection for obstructive sleep apnea; however, the Board finds that no such examination is necessary to fairly decide the claim because there is no evidence that the Veteran had any in service injury or disease related to sleep apnea. Further, the Veteran himself does not assert his sleep apnea began in service or is otherwise related to an in-service injury or disease. Accordingly, VA is not obligated to obtain a medical nexus opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that VA does not have a duty to assist that was unmet. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.