Citation Nr: 1516748 Decision Date: 04/20/15 Archive Date: 04/24/15 DOCKET NO. 10-16 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for chronic fatigue syndrome with fibromyalgia. 2. Entitlement to service connection for chronic obstructive sleep apnea. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from August 1989 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A November 2008 rating decision denied service connection for sleep apnea. A February 2012 rating decision granted service connection for chronic fatigue syndrome (CFS) with fibromyalgia with an evaluation of 20 percent, effective April 13, 2011. The Veteran testified before the undersigned in January 2015. A copy of the hearing transcript has been associated with the record. In February 2015, the Veteran submitted evidence which was accompanied by a waiver of Agency of Original Jurisdiction (AOJ) consideration. Hence, the Board may consider that evidence in this here decision. FINDINGS OF FACT 1. The Veteran's CFS with fibromyalgia is productive of fatigue, muscle and joint aches, sleep disturbance, inability to concentrate, forgetfulness, are constant or nearly constant, and are refractory to therapy. 2. Obstructive sleep apnea was not present during the Veteran's period of active duty or for several years thereafter; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed obstructive sleep apnea is related to his active service. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent for CFS with fibromyalgia have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.14, 4.88a, 4.88b, Diagnostic Codes 8863-6354, 5025 (2014). 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§1101, 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Chronic Fatigue Syndrome with Fibromyalgia The Veteran was initially granted service connection for CFS with fibromyalgia by rating decision issued in February 2012, with a disability rating of 20 percent, on a presumptive basis due to the Veteran's in-country service in Southwest Asia. The Veteran has disagreed with the initial 20 percent evaluation that was assigned, stating that the rating was "unacceptable," as his symptoms also included "concentration, forgetfulness, and confusion." (Presumably "[problems/issues with] concentration [.]") Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2014). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2014). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). The Veteran's service connected disability is rated under Diagnostic Code 8863-6354. Diagnostic Code 8863 indicated undiagnosed condition, systemic diseases. Diagnostic Code 6354 indicates CFS. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the rating. 38 C.F.R. § 4.27 (2014). Here, the hyphenated diagnostic code indicates that an undiagnosed condition/systemic disease is rated, by analogy, under the criteria for impairment for CFS. CFS is evaluated under Diagnostic Code 6354. Under that Diagnostic Code, CFS includes debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 10 percent disability rating is warranted for signs and symptoms of CFS that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or the symptoms are controlled by continuous medication. 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2014). A 20 percent disability rating is warranted for signs and symptoms of CFS which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2014). A 40 percent disability rating is warranted for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2014). A 60 percent disability rating is warranted for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2014). A maximum 100 percent disability rating is warranted for signs and symptoms of CFS that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2014). Additionally, a Note to Diagnostic Code 6354 provides that, for the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. Since the Veteran was also diagnosed with fibromyalgia as a disorder accompanying his CFS, the criteria used for fibromyalgia are pertinent to this case. Fibromyalgia is rated under Diagnostic Code 5025. Diagnostic Code 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, is to be rated 10 percent disabling if the symptoms requires continuous medication for control; 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time; and 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. In February 2011, the Veteran underwent a Gulf War Guidelines VA examination. The examiner noted that the Veteran complained of constant tiredness since 1991, even after an average of right-nine hours of sleep. The examiner noted that the Veteran was also diagnosed with, and treated for, sleep apnea, hypothyroidism, and obesity. The Veteran told the examiner that there has been an approximate reduction of normal activities by approximately 30 percent, and that he had hired an employee to help with his business. The examiner noted that the Veteran tool medication for his condition, that the Veteran asserted debilitating fatigue that was constant or nearly constant, that his fatigue did not wax and wane, and that his fatigue did not last 24 hours or longer after exercise. The veteran reported that he was too tired to play with his children, unable to increase his exercise, and too tired to perform duties at home and work. The Veteran also endorsed frequent muscle and joint pains, as well as constant sleep disturbances. The examiner stated that there was no objective evidence that the Veteran met the VA disability criteria for CFS, and that he had other comorbid conditions that had symptoms as described in his medical history. The examiner opined that the Veteran's complaints of fatigue were most likely related to obstructive sleep apnea and deconditioning. In a January 2011 addendum, the examiner noted that a diagnosis of CFS was confirmed in April 2011, and that the Veteran met criteria for both Gulf War Illness and CFS with fibromyalgia. In May 2012, the Veteran underwent another Gulf War General Medical Examination. Testing found no objective evidence of any immune system problems. His physical examination was normal. Although the examination concerned disorders other than CFS and fibromyalgia, the Veteran reported fatigue, sleepiness and muscular weakness, and denied mental disturbances (such as sluggish thoughts), In several statements, the Veteran has indicated that his symptoms of CFS (combined with "other disabilities") have made him miss work and required him to hire help to run his business, and that he had to miss work due to medical appointments (see March 2012 statement). The Veteran has asserted that his CFS symptoms of [problems with]concentration, forgetfulness, and confusion, as well as widespread body pain that affected both sides of his body warranted a 40 percent disability rating (see March 2012 statement). In the same March 2012 statement, he asserted that the 40 percent rating was also warranted due to headaches, irritable bowel syndrome, and "swelling of the brain." The Veteran also stated that his "immune system was defective" (see May 2014 statement). First, the Board notes that the Veteran's claimed symptoms of "swelling of the brain" and a "defective" immune system are not part of the rating criteria for CFS or fibromyalgia. Nor is there any objective medical evidence for either asserted symptom, and the AOJ has already denied the Veteran service connection for them. To the contrary, objective diagnostic testing during the May 2012 VA examination (and an August 2010 MRI mentioned in the May 2012 examination report) found that the Veteran's immune system and brain were normal, and that his approximately three headaches a year were relieved with Tylenol. Nor are these issues on appeal here. As for the increased rating, the Veteran mistakenly asserts that his symptoms of fatigue, inability to concentrate, forgetfulness, and confusion warrant a 40 percent rating for CFS. It behooves the Board to explain here that these symptoms apply to all disability percentages under Diagnostic Code 6354 for CFS - it is the severity of the symptoms present that warrants a lower or higher rating. As such, to warrant a 40 percent rating, the Veteran would have to display symptoms that were "nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year." 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2014). While the Veteran does claim that his symptoms of fatigue, inability to concentrate, forgetfulness, and confusion are "nearly constant," he has also claimed that his routine daily activities were restricted by about 30 percent of the pre-illness level. The Veteran has not claimed incapacitation by his symptoms, nor has he produced any evidence of physician-prescribed bed rest for his symptoms. As such, the Veteran does not qualify for a 40 percent disability rating under Diagnostic Code 6354. However, Diagnostic Code 5025 provides that fibromyalgia will be rated as 40 percent disabling if the symptoms of widespread musculoskeletal pain and tender points, fatigue, sleep disturbance, and irritable bowel symptoms, and depression that the Veteran experiences are constant or nearly constant, and are refractory to therapy. The Veteran has asserted over and over again that those very symptoms that he experiences are nearly constant. According to the Veteran's medical records, the symptoms are also refractory to therapy. As such, he qualifies for a 40 percent rating under Diagnostic Code 5025 for his CFS with fibromyalgia. Here, the Board notes that it is unclear whether the symptoms the Veteran claims are all, or in part, due to his CFS/fibromyalgia or other disabilities, both service-connected and non-service connected. The various symptoms, such as fatigue, problems sleeping, body pains, IBS, and depression can be, and have been, as seen by the Veteran's medical records, ascribed variously to: hypothyroidism (service-connected), major depression (service-connected), gastroesophageal reflux with small hiatal hernia and irritable bowel syndrome (service-connected), CFS with fibromyalgia (service-connected), back/tibial/foot/knee problems (service-connected), allergic rhinitis and sinusitis (service-connected), immune problems (not service-connected), Gulf War undiagnosed illness (not service-connected), sleep apnea (not service-connected), weight gain (not service connected), and headaches/brain swelling (not service connected). In light of the many comorbid diagnoses and symptoms, the Veteran should be mindful of the fact that VA regulations forbid "pyramiding" - which is the "evaluation of the same manifestation under different diagnoses." 38 C.F.R. § 4.14 (2014). The rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would over compensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, here, in the light of the Veteran's 100% disability rating which is already in place for his hypothyroidism, the Board believes that a 40 percent rating is warranted for his CFS/fibromyalgia. Simply stated, in light of the 100% finding, further development of this claim is simply not justified (and based on the evidence it may, in fact, lead to a reduction in the evaluation). Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the Veteran's CFS are contemplated by the schedular criteria. There is no record indicating that the Veteran has been hospitalized for his CFS. The record shows that the Veteran was self-employed for many years and worked full time, and although he has asserted that he no longer worked full-time and had someone else run his business, the Veteran experiences multiple disabilities and disorders (for some of which he is service-connected), and there is no evidence of record to suggest, nor has the Veteran alleged, that his CFS alone has rendered him unemployable. Therefore, the Board finds no reason to infer that his diagnosis of CFS alone has made him unemployable. In sum, there is no indication that the average industrial impairment from the Veteran's CFS is in excess of the 40 percent disability rating assigned. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. Thun, id. Sleep Apnea Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2014). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran is not entitled to presumptive service connection for his obstructive sleep apnea, as it is not considered a chronic disease for purposes of 38 C.F.R. § 3.303(b). See C.F.R. § 3.309(a) (2014). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2014). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's STRs are negative for report of, treatment for, or diagnosis of any sleep problems. The Veteran did not indicate experiencing any breathing problems, snoring, daytime hypersomnolence, non-restorative sleep, fatigue or having frequent trouble sleeping during his active service. On his September 1996 separation examination, the Veteran did mention that he had trouble falling into a deep sleep and woke up often, but also stated that his difficulties sleeping were due to his mental health issues. He did not mention any other sleep-related issues, such as breathing problems, snoring, daytime hypersomnolence, non-restorative sleep, and fatigue. However, rather significantly, he did identify experiencing a multitude of other problems - issues with his stomach, knees, ankles, feet, right wrist, lower back, trouble breathing stemming from asthma or allergies, excessive bleeding during oral surgery, head injury, heartburn, leg cramps, indigestion/GERD, broken finger and collar bone, hiatal hernia, weight gain, and being depressed. The Veteran's private medical records show that he complained of problems snoring in about 2000. In November 2000, his private doctor diagnosed the Veteran provisionally with sleep apnea, and recommended that a sleep study be conducted. Notably, there was no comment on the etiology of the sleep disorder. The doctor did, however, comment that the Veteran was obese and weight loss was recommended, and that he was being treated for hypothyroidism. In January 2001, the Veteran was seen for a sleep study evaluation. The sleep study showed obstructive resulting in a diagnosis of obstructive sleep apnea, markedly improved by 13 cm nasal CPAP. Notably, the doctor did not comment on the sleep apnea etiology, only diagnosing the condition. In April 2008, the Veteran's wife provided a statement in which she related that she met the Veteran when he was stationed in Korea in 1992, and that he was tired during the day, snored at night, or made "funny noises," causing her to wake him up. She stated that his snoring "increased dramatically" in 1994, getting worse after he "had some dental procedure done and started to gain weigh[t] very quickly." She related that that Veteran was depressed and tired, which she assumed was due to his work. She also stated that by 1996, his snoring and moving around at night have yet increased, and she eventually had to ask him to sleep in another room due to it. She noted that he snored even when he used the CPAC machine, complained about being tired, had trouble remembering things, and was unable to lose weight with his current diet and exercise regimen. Another lay statement was submitted in April 2008 (and then in December 2010) by the Veteran's mother, who related that the Veteran "suffered from a couple of sleeping disorders" ever since he returned from active service. She stated that the Veteran snored "really hard and loud" and could be heard throughout the house, which often disturbed his [own] sleep. She also reported that the Veteran "had episodes of sleep apnea and sleep deprivation," which "disrupted his home frequently." Also in April 2008, a friend of the Veteran's provided a statement in which he related that he has known the Veteran for almost four years, and has noticed that the Veteran would fall asleep on the couch and snored excessively, and could be heard snoring even when he slept in his upstairs bedroom. In December 2010, the Veteran's brother stated that the Veteran had struggled with "problems sleeping" since returning from Desert Storm, and that the problems were later diagnosed as sleep apnea and restless leg syndrome. A VA Examination was conducted in October 2008 to assess the etiology of the Veteran's sleep apnea. The examiner noted that the Veteran's obstructive sleep apnea was diagnosed in 2001. The examiner related that the Veteran reported loud snoring since about 1999. The examiner also noted that a review of the Veteran's claims file did not show visits for this issue, despite the fact that the Veteran had many clinic visits during service, "mainly due to his hiatal hernia." The examiner reported that the Veteran's snoring could have been from his allergic rhinitis, as snoring is not an absolute sign of sleep apnea or weight change (the Veteran had complained of weight loss and gain in active service). The examiner noted that the Veteran used medication and a continuous positive airway pressure (CPAP) machine. The examiner concluded that the Veteran's sleep apnea was less likely than not related to his active service. While the Veteran did have obstructive sleep apnea, the examiner emphasized that he was not seen for sleep apnea or sleep apnea complaints in service, despite the fact that he visited the clinic frequently for other issues. The examiner added that the Veteran only started complaining about snoring about three years after release from active service and was diagnosed in 2001, and that the Veteran's claimed in-service and immediately post-service snoring could have been due to his allergic rhinitis, and not necessarily to sleep apnea (or weight changes), as the Veteran was diagnosed with allergic rhinitis while in active service and was treated for it several times, per his STRs. In statements submitted, the Veteran has related that he had no problem falling asleep prior to being deployed to the Gulf War in 1991. He reported that his weight fluctuated when he was in service, and had "several minor sinus infections and nosebleeds" in active service, and that his mother noticed that he "snored excessively" when he returned home from the desert. The Veteran related that he complained of sleep issues while still in active service, but was never evaluated for sleep apnea. In addition, the Veteran related that his sleeping issues may have been due to mental health issues, and that he was on medication for sleeping problems and used a CPAC machine for sleep apnea. The Veteran listed his symptoms as depression, anxiety, and being tired even with CPAC use (see June 2009 statement). In other statement, the Veteran has ascribed his sleeping issues to CFS, fatigue, sleep apnea, and psychiatric issues (see August 2010 statement). After a review of the record, the Board concludes that entitlement to service connection for obstructive sleep apnea is not warranted. While the Veteran is currently diagnosed with the condition, the competent and probative evidence of record does not demonstrate a nexus between the obstructive sleep apnea and his active service. The Veteran's STRs are absent of any complaints or findings related to obstructive sleep apnea during active service. The Veteran reported no sleep issues (other than difficulty falling and staying asleep), snoring, or any such problems at time of service separation. Further, as indicated, the record includes an October 2008 VA examination which was conducted to address the etiology question at issue. The physician found no relationship between the Veteran's in-service sleep problems, as reported by him, and the post-service diagnosis of obstructive sleep apnea. The Board acknowledges that while the examiner did not address the lay statements submitted by the Veteran's wife, mother and friend, the examiner stated that no notes in the claims file substantiated the typical signs of possible sleep apnea at the time of the Veteran's active service or right thereafter. In other words, even if the lay statements and the information contained in them are taken out of the equation, the Veteran's descriptions of his sleep-related issues which he asserted he experienced during active service, combined with the lack of any complaints pointing to sleep apnea in active service, reflected that his snoring could have been related to his diagnosed allergic rhinitis, as none of the complaints typical of sleep apnea were present. In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting the continuation of symptoms, including his January 2015 Board hearing testimony. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). To the extent that he reported having sleeping problems (and, specifically, problems initiating sleep and staying asleep), and his later reports of snoring, he is competent to provide such a history. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of his sleep problems symptoms and their effect on his activities. However, although the Veteran is competent to report sleeping problems, he is not competent to provide a medical diagnosis or nexus. The Board notes that there is no evidence that the Veteran possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or the causal questions of whether his claimed disability can be attributed to his in-service experiences. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board emphasizes that there is a persuasive VA medical opinion that weighs against the Veteran's claim. The Veteran's assertions opining that his current obstructive sleep apnea is related to his active duty service are outweighed by the medical evidence to the contrary. The Board finds the October 2008 VA examination to be the only competent and probative evidence of record, and therefore accords it greater weight than the Veteran's subjective complaints of symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Consideration has also been given to the lay statements submitted on the Veteran's behalf. The Veteran's wife reported that the Veteran had snored and was tired during the day when she met him in 1992, and that he made "funny noises" at night. His mother and brother have also reported that the Veteran snored, and that he had sleep apnea and sleep disruption since returning home from active service. His friend reported in April 2008 that he has known the Veteran for about four years, and that the Veteran snored loudly. The Board affords little probative value to those statements. The Board acknowledges that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a particular claimed disability as complicated as sleep apnea, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). First, the Veteran's wife reported that he snored and made "funny noises" at night when they met in 1992, that he was tired, and that these symptoms increased over the years. While she is competent to relate what she had observed, she is not competent to tie the Veteran's snoring and fatigue, which were already occurring when she met him (and could have been going on for years, as far as she knows), to anything he has experienced in active service. Second, the Veteran's friend has reported that he has met the Veteran about eight years after the Veteran left active service. While his friend is competent to observe that the Veteran snored loudly, he is not competent to offer an opinion as to the Veteran's snoring being related to his active service (or having started in active service). Lastly, although the Veteran's mother has indicated that she is a nurse, she has not indicated any training in, or specialized knowledge of, sleep disorders. Again, while she is competent to describe the Veteran's loud snoring and daytime fatigue, she is not competent to diagnose the etiology of the Veteran's obstructive sleep apnea - and neither is the Veteran's brother. As noted, the Veteran's STRs are absent any complaints, treatment, or diagnosis of sleep apnea, chronic snoring, or sleep other problems (outside of his mentioning difficulty initiating and maintaining sleep on his September 1996 exit examination). It is also noteworthy that the Veteran did not start reporting sleep apnea symptoms (snoring) to his doctor until November 2000 (or sometime in 1999, as reported by the October 2008 VA examiner). Had he been experiencing those symptoms before, he presumably would have reported them, as he did report symptoms of multiple other issues before November 2000, including a multitude of issues for which he was seen while in active service. Such weighs heavily against his more recent reported medical history. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has ... the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). See also AZ v. Shinseki, 731 F.3d 1303 (2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Therefore, his failure to report any snoring/sleep apnea complaints before November 2000 is persuasive evidence that he was not experiencing any relevant problems then, and outweighs his present recollection to the contrary. The Board finds that the October 2008 VA examiner detailed the Veteran's symptoms and history of sleep issues. The examiner explicitly considered the Veteran's assertion that his current sleep apnea was related to the sleep problems/snoring he experienced in active service. The examiner reviewed the Veteran's claims file, and reported the Veteran's symptoms thoroughly. The Veteran has not provided any private medical opinion which addresses any relationship between his self-reported in-service sleep apnea/snoring symptoms and his current obstructive sleep apnea. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board emphasizes that there is a persuasive VA medical opinion that weighs against the Veteran's claim, and that the Veteran's assertions opining that his current disability is related to his active duty service and any symptoms he experienced therein are outweighed by the medical evidence to the contrary. In summary, as the preponderance of the evidence is against the claim, service connection for obstructive sleep apnea is not warranted. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist Veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran was provided notice letters in October 2010, February 2011 and May 2012 informing him of both his and VA's obligations. Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. The Veteran has also been provided with multiple VA examinations. Upon review of this examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2014); Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The RO associated with the claims file the Veteran's service treatment records, service personnel records, private treatment records, and VA treatment records. The Veteran has not identified any relevant records aside from those that are already in evidence. As such, Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a rating of 40 percent for chronic fatigue syndrome with fibromyalgia is granted. Entitlement to service connection for obstructive sleep apnea is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs