Citation Nr: 1647503 Decision Date: 12/21/16 Archive Date: 12/30/16 DOCKET NO. 13-13 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1991 to May 1995. This case comes before the Board of Veterans' Appeals (the Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's notice of disagreement (NOD) was received in April 2012 and a Statement of the Case (SOC) was issued in February 2013. The Veteran submitted additional evidence in April 2013 and a Supplemental Statement of the Case (SSOC) was issued in June 2013 to address the new evidence. In August 2013, the Veteran underwent a VA examination. The report was added to the record and another SSOC was issued to address the new evidence in August 2013. The claim is now before the Board. FINDING OF FACT The weight of the competent, credible evidence is against finding there was an in-service incurrence or event, injury, or illness related to the Veteran's current sleep apnea disability. CONCLUSION OF LAW The criteria for service connection for a sleep apnea disability have not been met, and service connection cannot be awarded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2015). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claim, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter from VA in November 2010 notified the Veteran of how to substantiate his service connection claim. The letter notified the Veteran of the allocation of responsibilities between himself and VA, and of how ratings and effective dates are assigned. Therefore, VA's duty to notify is satisfied. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Here, the Veteran's service treatment records (STRs) and VA medical records are associated with the Veteran's claims file. The Veteran has not identified any additional relevant evidence. Thus, the VA's actions satisfied its duty to assist the Veteran in developing his claim. See 38 U.S.C.A. § 3.159(e) (West 2014). The Veteran was afforded a VA examination in August 2013. The examiner provided the Veteran with an in-person examination, noted the Veteran's lay testimony, the lay testimony from a third party, and considered the Veteran's medical records during and after his active service. The examination collectively satisfied the VA's duty to assist the Veteran with an examination. The Board finds that there is sufficient evidence to decide this claim, and that further medical opinion is not necessary to decide the claim for service connection. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran has been afforded the opportunity to present evidence and argument in support of his claim. He elected not to have a hearing before the Board in his April 2013 formal appeal. Accordingly, the Board will proceed to a decision as to the issue on appeal. Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2015). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015); Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, the claimed condition, sleep apnea is not considered to be a chronic condition within the meaning of 38 CFR § 3.307 (2015). See Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Competency of evidence, however, 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) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis The Veteran has filed a claim for service connection for sleep apnea. He reports that he was diagnosed with the condition in 2010, but had experienced the symptoms since he was in service. Treatment records from the Columbia, South Carolina, VA system confirmed that the Veteran was diagnosed with sleep apnea in 2010 after a sleep study was performed. Therefore, the evidence establishes the first element of service connection, a current disability. The Veteran has related that he experienced symptoms of sleep apnea while he was in service. In the Veteran's December 2010 statement in support of the claim, he stated that he was frequently tired, would wake up with migraines, and his body would always feel tired. The Veteran's statements were made in the context of seeking benefits. They are contradicted by the Veteran's statements that were contemporaneous to the claimed events. In the Veteran's report of medical history from February 1995, the Veteran affirmatively denied having frequent trouble sleeping. Statements made contemporaneously to an event tend to negate the likelihood of deliberate or conscious misrepresentation. See Fed. R. Evid. 803(1). See also Gambill v. Shinseki, 576 F.3d 1307, 1330 (Fed.Cir.2009) (Moore, J., concurring) (recognizing that the Veterans Court has looked to the Federal Rules as " 'guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence' " (quoting Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008))). The Board finds that the Veteran's contemporaneous denial of sleep difficulties is more probative than Veteran's statements made when seeking benefits because the denial of symptoms was made closer in time to the event in question and outside the context of receiving a potential benefit. The Veteran also provided a buddy statement in April 2013 from a fellow sailor with whom he served. It stated that the Veteran would have shortness of breath while sleeping, loud and very annoying snoring patterns, and that the fellow sailor would have to walk up the Veteran to verify consciousness because of long patterns of gasping for air. This statement, like the Veteran's statement in December 2010 is contradicted by the contemporaneous statement of the Veteran denying sleep problems. Further, the August 2013 examiner stated that if the symptoms were as severe as the buddy statement reported, it would have been evaluated. However, as the examiner noted and the record substantiates there is an absence of reported symptoms or evaluations for a sleep disorder in the Veteran's STRs. Generally, the absence of evidence may not be considered as substantive negative evidence; however, the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded. See Horn v. Shinseki, 25 Vet. App. 231, 239 and note 7 (2012) (citing Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011), and Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring)). Here, the examiner established that the events reported by the buddy statement would have resulted in an event that would be documented. The absence of such a documented event, is thus evidence that the events did not occur as reported. The Board finds that the Buddy statement lacks probative value as it is contradicted by both contemporaneous statements and lacks the expected supportive documentation per the August 2013 examiner. The August 2013 VA examiner's opinion is probative as it was based on a review of the record, including the lay evidence as noted above, and an examination of the Veteran. The examiner concluded that sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event or illness and supported that conclusion with rational as noted above. The Board finds that examiner's opinion probative and that is outweighs the other evidence of record. To the extent that are lay assertions that sleep apnea had its onset in service, the Board finds that those assertions are not probative as the lay persons, including the Veteran and his fellow serviceperson, are not competent to provide evidence on the issue of causation as the etiology of the condition falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 137 (Fed. Cir. 2007). Thus, the preponderance of the evidence is against finding there was an in-service incurrence or event, injury, or illness related to the Veteran's current sleep apnea disability. Therefore, the second element necessary for service connection is not established and the Board must deny the Veteran's claim. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs