Citation Nr: 22017990 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 19-15 331 DATE: March 27, 2022 ORDER Entitlement to service connection for OSA is granted. Entitlement to service connection for a dental disorder has been withdrawn. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, OSA began during active service. 2. On December 3, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of a dental disorder is requested. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of entitlement to service connection for a dental disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from April 2002 to October 2006; and from July 2007 to August 2012. This matter comes to the Board of Veterans Appeals (Board) from an appeal of a September 2017 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was conducted by video conference in November 2021 before the undersigned Veteran's Law Judge, at which the Veteran testified; a transcript is of record. 1. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran contends that his OSA began during his active military service, and he seeks service connection. At the November 2021 Board hearing, the undersigned noted the full record needed to be reviewed prior to determining whether new and material evidence was needed for this claim or not. The new and material evidence standard is not applicable because new evidence was received within one year of the July 2015 rating decision; namely the Veteran's new claim in August 2015 and also September 2015 service treatment records referencing snoring. See 38 C.F.R. § 3.156(b) and (c). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(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 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran's service treatment records from May 2012 reveal that the Veteran had a chronic snoring problem. An August 2017 private sleep study confirms that the Veteran has a current diagnosis of mild obstructive sleep apnea. A buddy statement received in May 2019 reports that between 2011 and 2015 the Veteran's former roommate witnessed that the Veteran stopped breathing many times on a nightly basis. Further, the Veteran's former roommate related that the Veteran exhibited incredibly loud snoring. At the November 2021 Board hearing, the Veteran testified that he was issued a breathing machine through the VA for his OSA. Further, the Veteran's representative asserted that the Veteran's uvula surgery during military service to correct the snoring symptoms the Veteran exhibited during his active military service. Based on the evidence as discussed above, the evidence is in approximate balance as to whether the Veteran's OSA is attributable to his active military service. See 38 C.F.R. § 3.102. Specifically, the Veteran's in-service reports of snoring and uvula surgery weigh in favor of a finding that the Veteran's OSA had its onset during the Veteran's active military service. Therefore, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for OSA is warranted. 2. Entitlement to service connection for a dental disorder is withdrawn. The Board may dismiss any appeal or issue which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, in a December 3, 2021, correspondence, and at the November 2021 hearing, the Veteran and his authorized representative, have withdrawn his appeal for a dental disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim for service connection for a dental condition and it is dismissed. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.