Citation Nr: 1442435 Decision Date: 09/23/14 Archive Date: 09/30/14 DOCKET NO. 09-06 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was originally scheduled to appear at a Board hearing in June 2014. The Veteran subsequently requested that his hearing be rescheduled. In September 2014, the RO notified the Veteran that he had been scheduled for a hearing on October 15, 2014. However, because the evidence of record warrants the full grant of the benefit sought, there is no need for the Veteran to testify at a Board hearing on this matter. FINDING OF FACT The Veteran's sleep apnea is related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for sleep apnea, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. The Veteran seeks service connection for sleep apnea, and maintains that his symptoms began in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board finds that the evidence supports an award of service connection for sleep apnea. The Veteran was formally diagnosed with this disorder in July 2002. The Veteran's wife has reported that since they married in 1981, the Veteran has snored very loudly, has stopped breathing many times during the night for periods of seconds to over a minute, and has then gasped for breath. The wife has also stated that the Veteran's snoring has prevented both of them from getting a good night's rest and that they are both extremely fatigued the next day as a result. The Veteran's wife is competent to report these observed symptoms, as they are within the realm of her personal experience and are capable of lay observation. See Layno, 6 Vet. App. at 469-70 (a layperson is competent to report on that of which he or she has personal knowledge). The Board finds that the wife's report of these symptoms is credible. In January 2009, the Veteran's private physician submitted a letter in which he opined that the Veteran has had obstructive sleep apnea for several years, including while serving in the military. The physician reasoned that the Veteran exhibited signs and symptoms of sleep apnea for several years while on active duty, including loud snoring and daytime hypersomnolence. In March 2009, the physician further opined that the wife's reports evidenced the classic symptoms of sleep apnea, including witnessed apneic episodes and daytime hypersomnolence. This medical opinion from the Veteran's private physician provides strong evidence of a nexus between the Veteran's current sleep apnea and his in-service symptoms. Although a VA examiner opined in March 2009 that the Veteran's sleep apnea was not related to service, this opinion was based on an inaccurate legal premise. The examiner reasoned that, despite the lay evidence submitted by the Veteran's wife regarding his symptoms in service and the private doctor's positive nexus opinion based on those symptoms, service connection was still not warranted because the symptoms had not been documented in the service treatment records and the condition was not diagnosed until several years later. In essence, the VA examiner was dismissing the lay evidence because of a lack of documentation in service. However, it is well established that while the absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Moreover, the Board finds the private medical opinion to hold greater probative value than the VA medical opinion, because the private physician has been treating the Veteran since 2002 and has a greater degree of familiarity with the Veteran's condition. The private physician based his opinion on a review of the Veteran's pertinent medical history and supported his conclusion with sufficient rationale. Based upon the Veteran's current diagnosis of sleep apnea, his wife's competent and credible reports of witnessed apneic episodes, snoring, and daytime hypersomnolence since 1981 while still in service, and the private medical opinion that identified a positive nexus between the current diagnosis and the in-service symptoms, the Board finds that service connection for sleep apnea is warranted. ORDER Service connection for sleep apnea is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs