Citation Nr: 1804035 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-30 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from February 1987 to June 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2017, the Veteran appeared before the undersigned at a videoconference hearing. The transcript of the hearing has been associated with the claims file. FINDING OF FACT The evidence reasonably shows that the Veteran's sleep apnea had its onset during service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 decision). Under 38 C.F.R. § 3.303 (d) service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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 v. Nicholson, 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had an inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (2017). Moreover, the United States Court of Appeals for Veterans Claims 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 Veteran has a current diagnosis of sleep apnea, satisfying the first element of service connection. See June 2012 VA sleep study report. An April 2004 service treatment record documents the Veteran's reported sleeping difficulties. Moreover, he has submitted numerous lay statements that he experienced sleeping difficulties during active duty that have been continuous. Further, he and his wife testified that sleeping difficulty was noted in service and continued to the present. Indeed, his wife indicated that the Veteran experienced snoring; she witnessed apneas, choking, and coughing while he was on active duty. The lay statements and testimony are competent as they reflect personal observation and/or experience. The Board has no reason to doubt the credibility of the lay statements and testimony, and they are probative in that they tend to show that the Veteran exhibited symptoms of a disability (later-diagnosed as sleep apnea) during active duty. Moreover, numerous VA treatment notes since service reflect that the Veteran has consistently complained of daytime fatigue and trouble sleeping. Based on the unique circumstances regarding this Veteran's sleep apnea, the Board finds that the evidence shows that his sleep apnea had onset during service. As such, service connection for this disability is warranted. ORDER Service connection for sleep apnea is granted. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs