Citation Nr: 1335710 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-06 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to October 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. As the RO in Roanoke, Virginia, granted service connection for arthritis of the bilateral feet in May 2013, the Board does not address this issue. FINDING OF FACT The Veteran's current sleep apnea was not manifested in service, and has not been linked by competent evidence to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. January 2008 and October 2007 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and disability rating. The Veteran was informed of the need to show the impact of disability on daily life and occupational functioning. The claim was subsequently readjudicated, most recently in an August 2013 supplemental statement of the case. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. He did not identify any outstanding treatment records pertinent to the appeal. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. VA must provide a VA medical examination or obtain a medical opinion if the evidence of record is insufficient to decide the claim. 38 C.F.R. § 3.159(c)(4). While there is evidence of a current disability, the evidence does not indicate that the claimed disability may be associated with an established event, injury, or disease in service. For this reason, a VA medical examination or medical opinion is not necessary to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Analysis The Veteran seeks service connection for sleep apnea. He maintains that he has had difficulty sleeping in and since service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Disorders diagnosed after discharge may still be service-connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). As sleep apnea is not a chronic disease listed in 38 C.F.R. § 3.309, service connection on the basis of 38 C.F.R. §§ 3.303(b) and 3.307 is not applicable. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report the onset and recurrence of symptoms which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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, 581 F.3d at 1316. 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). The Board is also charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran's service treatment records do not reflect any instance when complaints were considered suspicious for the presence of sleep apnea. The only occasion when sleep complaints were noted was in connection with the Veteran's back pain. The Veteran was first diagnosed to have sleep apnea in 2007, more than 2 years after service. These records do not suggest a link to service. Although the Veteran and his fiancé contend the disability is related to service, they are not shown to have the medical expertise to establish this fact. Furthermore, they have not described in-service symptoms, (which the would be competent to report), which supported the later diagnosis. To the extent more general sleep problems in service are described, the Veteran is already service connected for post traumatic stress disorder with depression and insomnia. Under these circumstances, the greater weight of the evidence is against the conclusion that sleep apnea was incurred in service. ORDER Service connection for sleep apnea is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs