Citation Nr: 18140546 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 17-61 829 DATE: October 3, 2018 ORDER Service connection for sleep apnea is denied. FINDING OF FACT Sign and symptoms associated with sleep apnea began years after the Veteran’s separation from service, and the sleep apnea diagnosed in 2009 is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for Sleep Apnea Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Sleep apnea is not a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the “chronic disease” presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) do not apply to the claim for residuals of a left eye injury. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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”). The Board may weigh the absence of contemporaneous medical evidence as one factor to weigh against the other evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran generally asserts that he is entitled to service connection for sleep apnea. Neither he nor his representative have, however, provided any lay or medical evidence as to why the Veteran believes his sleep apnea is related to his active duty service. In his July 2017 claim for sleep apnea, the Veteran stated simpy, “I have been issued a CPAP machine from the VA for this condition,” but provided no additional evidence or information regarding the nature and etiology of the disability. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that sleep apnea had its clinical onset during service, or that it is otherwise related to service. The service treatment records, which appear to be complete, are absent of complaints of, findings of, or diagnosis of sleep apnea. During his August 1968 separation examination, the Veteran denied having headaches, shortness of breath, or frequent trouble sleeping. Post-service medical treatment notes dated prior to 2009 are silent as to any complaints of, findings of, or diagnosis of sleep apnea. Private treatment notes dated in January 2004 indicate that the Veteran denied any shortness of breath or headaches. Notably, private treatment notes received by VA in February 2009 contain a November 2006 Medical Examination Report for Commercial Driver Fitness Determination, which specifically noted no sleep disorders, pauses in breathing while asleep, daytime sleepiness, or loud snoring. It was not until July 2009 that the Veteran was referred for sleep study. An August 2009 sleep study confirmed a diagnosis of sleep apnea. Notably, this was decades after the Veteran’s separation from service. The absence of any in-service reports of signs or symptoms associated with sleep apnea, and the continued denial of such for decades after separation from service weighs against finding that sleep apnea had its clinical onset in service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown that the record is complete and also that the fact would have been recorded had it occurred); Kahana v. Shinseki, 24 Vet. App 428, 438 (2011) (stating that VA may use silence in service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and injury, disease, or symptoms would ordinarily have been recorded had they occurred). As noted above, the weight of the lay and medical evidence shows no sleep apnea symptoms or sleep apnea diagnosis until approximately 2009, over 40 years after service separation. The Board acknowledges that the Veteran has not been afforded a VA examination regarding his claim for service connection sleep apnea. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Although the record contains a current diagnosis of sleep apnea, a VA examination is not required in this case because there is no evidence demonstrating that the Veteran had an injury or disease in service and there is no competent evidence even suggesting that the currently diagnosed sleep apnea may otherwise be associated with service or a current service-connected disability. Id. As the preponderance of the evidence is against the claim, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel