Citation Nr: 22011909 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-07 048 DATE: March 2, 2022 ORDER Entitlement to service connection for sleep apnea, to include as due to asbestos exposure is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.103, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran failed to show for the video hearing he had requested in connection with his appeal. Therefore, the Board of Veterans' Appeal (Board) considers this hearing request withdrawn. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure The Veteran contends that his sleep apnea was caused by his military service. Specifically, he believes that in-service exposure to asbestos caused his sleep apnea. 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). As indicated in the Statement of the Case, the RO conceded asbestos exposure during service. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis related to sleep apnea. Post-service treatment records are silent for sleep apnea until December 2013, when he was diagnosed to have severe obstructive sleep apnea from a private medical facility. None of the medical records indicate that the Veteran's sleep apnea was caused by his asbestos. The Veteran contends that he had sleep apnea for many years, however, the earliest medical evidence of record indicating the presence of sleep apnea is in December 2013, which is about 32 years after separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran's discharge and an initial diagnosis or the claimed disorder is one factor that weighs against the Veteran's claim. Regarding the Veteran's statements that his sleep apnea is due to his asbestos, and he has had it for many years, the Board acknowledges that the Veteran is competent to report his symptoms. However, to the extent that such assertions purport to establish the etiology of any such disability, those assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Moreover, there is no medical evidence linking the Veteran's sleep apnea to his asbestos exposure. The Board acknowledges that the Veteran was not afforded a VA examination for sleep apnea. The Board finds the record shows no reasonable possibility that a VA examination would aid in substantiating the service connection claim for sleep apnea. See 38 U.S.C. § 5103A (a). In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability; (2) whether there is evidence establishing that an injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The weight of the evidence (namely contemporaneous service treatment records and post-service treatment records) is against a finding that sleep apnea had its onset during active service or within one year of separation from active service or competent evidence even suggesting that his sleep apnea is related to his asbestos exposure. As such, elements (2) and (3) are absent. Therefore, VA has no duty to provide a VA examination or obtain an opinion. Moreover, the United States Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case. Accordingly, the evidence persuasively weighs against the Veteran's claim for service connection for sleep apnea, as there is no competent evidence showing a causal connection between sleep apnea and in-service incurrence, to include asbestos exposure. Therefore, this claim must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.