Citation Nr: 18148788
Decision Date: 11/08/18	Archive Date: 11/08/18

DOCKET NO. 14-03 524
DATE:	November 8, 2018
ORDER
Service connection for obstructive sleep apnea (OSA) is denied.
FINDING OF FACT
There is no probative medical evidence that indicates the Veteran’s current severe OSA disability was incurred during service.
CONCLUSION OF LAW
The criteria for service connection for obstructive sleep apnea have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from July 1979 to October 1979. The case was remanded in November 2017 for evidentiary development.
Duty to Notify and Assist
All necessary assistance to obtain evidence has been provided. A sleep apnea VA examination was requested during the appellate period. However, the Veteran could not be located to schedule the examination. While VA has a duty to assist the Veteran in developing evidence pertinent to his claim, the Veteran also has a duty to assist and cooperate with VA in developing this evidence. 38 C.F.R. § 3.159 (c). The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Pursuant to 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.
VA has satisfied its duty to notify and assist and the Board may proceed with appellate review.
Entitlement to service connection for obstructive sleep apnea (OSA)
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran 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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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). 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s 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 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.
In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Obstructive sleep apnea (OSA) is a specific medical condition defined as the “cessation of breathing resulting from the collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.” See Dorland’s Illustrated Medical Dictionary 116-17 (32nd ed. 2012).
VA treatment records indicate the Veteran was diagnosed with severe obstructive sleep apnea in December 2009.
Service treatment records (STRs) indicate the Veteran denied trouble sleeping at his January 1979 report of medical history. His clinical examination was normal. However, the Veteran reported a history of dizziness and blackout spells prior to enlistment. During basic training, the Veteran complained of dizziness, blackouts, and headaches. He was assigned limited duty and evaluated for post-traumatic epilepsy. In October 1979 a medical board recommended the Veteran be discharged from service due to his history of loss of consciousness episodes. There are no complaints, diagnoses or treatments for sleep-related problems during active service. The Veteran was honorably discharged in October 1979 for failing to meet procurement medical fitness standards.
The preponderance of the evidence is against finding service connection for OSA. There is no probative medical evidence that indicates the Veteran’s current severe OSA disability was incurred during service.
The Veteran has continuously asserted throughout the appeal that his current OSA disability had its onset during his active service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current OSA disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Obstructive sleep apnea requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service.
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Since the Veteran’s current OSA disability was not incurred in service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
 
Vito A. Clementi
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Anwar, Associate Counsel