Citation Nr: 25005268 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 17-42 165 DATE: April 17, 2025 ORDER Entitlement to service connection for a left shoulder disability is dismissed. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. At the August 2024 Board hearing, the Veteran withdrew the appeal for service connection for a left shoulder disability. 2. The Veteran's sleep apnea began during his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to service connection for a left shoulder disability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to December 2012. His awards and decorations include a Purple Heart, Combat Medical Badge, Combat Action Badge, and Army Commendation Medal with V Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2024, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. 1. Entitlement to service connection for a left shoulder disability. The Board may dismiss any appeal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 appellant or by his authorized representative. Id. In the present case, the Veteran has withdrawn his claim for entitlement to service connection for a left shoulder disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran withdrew his claim for entitlement to service connection for a left shoulder disability at the August 2024 Board hearing. The Veteran's withdrawal was explicitly stated on the record and was unambiguous. See August 2024 Board Hearing Transcript. In addition, the undersigned Veterans Law Judge explained that new and material evidence would be needed should the Veteran decide to reapply for service connection in the future. The Veteran expressed full understanding of the consequences of his withdrawal. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and the appeal is dismissed. 2. Entitlement to service connection for sleep apnea. The Veteran contends his sleep apnea began during his active service. Alternatively, he asserts his sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Under 38 U.S.C. § 1154(b), VA has created a presumption regarding the in-service incurrence or aggravation of a disability claimed to be the result of combat service. When a veteran has engaged in combat with the enemy during active service, VA must accept satisfactory lay or other evidence that is "consistent with the circumstances, conditions or hardships of such service." 38 U.S.C. § 1154(b). This evidence serves as "sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such [combat] service." 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Moreover, in Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012), the Federal Circuit Court held that the combat presumption contained in 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) not only applies to a combat injury, but also to the consequences of that injury, at least in service. Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves, 682 F.3d at 999 n.9. As noted above, the Veteran contends his sleep apnea began during his active service. During his Board hearing, the Veteran testified that he started having issues with sleep apnea in 2006 "after I got blown up in Iraq." He testified that he sought medical attention, but they were so far out from the forward operating base that they did not have the equipment to diagnose the Veteran, so they just gave him a CPAP machine. He testified that he was issued the CPAP machine in 2007. He stated that fellow servicemembers noticed that he stopped breathing at night and that he snored. He testified he also woke up throughout the night and that he did not have any sleep apnea symptoms prior to his deployment. He testified that he next received treatment in 2012 and had used a CPAP machine since then. When asked if any physician had linked his sleep apnea to service, the Veteran stated, "I don't know if they link it to service but they link it to kind of that event I'm telling you about." The Veteran's DD 214 reflects that he was awarded numerous awards and decorations, to include a Purple Heart, Combat Medical Badge, Combat Action Badge, and Army Commendation Medal with V Device. Accordingly, the Veteran is entitled to the combat presumption. The Veteran's service treatment records (STRs) reflect that in January 2007, the Veteran was diagnosed with unspecified intracranial injury with concussion after he was injured and hospitalized in Iraq for a concussion after a mortar attack in October 2006. He was also diagnosed with nightmare disorder. In March 2007, he reported sleep difficulties with frequent nightmares. In June 2011, he presented with trouble sleeping and nightmares for the past four weeks, and July 2011 STRs reflect assessments of post-traumatic insomnia and sleep terror disorder. On a November 2011 Report of Medical History at separation, the Veteran answered "yes" to having frequent trouble sleeping, reporting that he had constant trouble sleeping and nightmares. His STRs do not contain a diagnosis of or treatment for sleep apnea. Post-service, a January 2013 VA treatment record documented that the Veteran presented to VA to establish care. He reported his past medical history such as high cholesterol, traumatic brain injury, a finger injury, and back pain, but he did not report a history of sleep apnea. VA treatment records reflect reports of difficulty falling and/or staying asleep in February 2013, December 2014, January 2015, July 2015, December 2015, April 2016, and December 2016. In January 2017, the Veteran was referred for a home sleep study by his VA doctor due to having several symptoms of sleep apnea. Following a February 2017 home sleep study, the Veteran was diagnosed with mild obstructive sleep apnea, and in April 2017, he was provided with a CPAP machine. A December 2017 VA sleep medicine consult note documented that the Veteran had sleep complaints since 2003 and was diagnosed with obstructive sleep apnea in 2013. In April 2017, a VA medical opinion was obtained and the examiner opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of his service-connected PTSD and was less likely than not aggravated by his PTSD. The examiner instead opined that his sleep apnea was related to his post-service weight gain/obesity. In June 2017, the Veteran submitted a letter from his VA psychiatrist, and she opined that the Veteran's PTSD aggravated the severity of his sleep apnea symptoms. In July 2017, the Veteran was afforded a VA sleep apnea examination, and the examiner reported a diagnosis of obstructive sleep apnea with a date of diagnosis of 2017. The Veteran did not know the date of onset of his sleep apnea and reported having problems with sleeping and drowsiness for many years. An opinion was not obtained as to whether the Veteran's obstructive sleep apnea was related to his active service. In October 2017, a VA medical opinion was obtained, and the examiner opined that it was not at least as likely as not that the Veteran's obstructive sleep apnea was aggravated by his PTSD. The examiner concluded that the etiology and aggravation of his obstructive sleep apnea was found in his post-service weight gain/obesity and not PTSD. After reviewing the evidence of record, the Board finds that service connection is warranted on a direct basis. When evaluating evidence, the Board must give due consideration to all pertinent medical and lay evidence, and in the service-connection context must consider the circumstances, conditions, and hardships of the Veteran's service. 38 U.S.C. § 1154(a). Moreover, for a combat injury, 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) provide that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary, which in this case is not established. When assessing whether the Veteran's current sleep apnea is related to his service, the Board has considered the application of the combat presumption in Reeves and the Veteran's statements suggesting that his sleep apnea began in service after he was injured in Iraq. Although his STRs do not contain a diagnosis of sleep apnea, his STRs are consistent with his report that he started experiencing sleep difficulties in 2006 to 2007 after his injury in Iraq, and post-service treatment records reflect continued reports of difficulty sleeping since his separation from service. For the present appeal, the Board finds the Veteran is competent to testify as to the symptoms he experienced during service, as well as report on the continuity of symptomatology since his combat injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran testified at his Board hearing that his fellow servicemembers noticed he stopped breathing at night and that he snored. In considering the above, the evidence supports finding that the Veteran incurred his current sleep apnea during his active service. Accordingly, the Board finds that service connection for sleep apnea is warranted, and the claim is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bruce, 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.