Citation Nr: 18152967 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-50 868 DATE: November 27, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the competent and credible evidence is against a finding that the Veteran’s sleep apnea is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to October 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board acknowledges that a substantive appeal has been received in March 2017 regarding other pending claims. However, these claims have not yet been certified to the Board as they are still being developed. This development includes pending VA examinations. See November 2018 scheduling request. As such, the Board does not yet have jurisdiction over these matters, and they will not be further discussed herein. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). In some cases, lay evidence will be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In Jandreau, the United States Court of Appeals for the Federal Circuit stated that a layperson can identify a simple condition like a broken leg, but not a form of cancer. Id. at 1377, n.4. Lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Id. at 1377. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that varicose veins is a disability that is unique and readily identifiable). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by an appellant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted by or on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Entitlement to service connection for sleep apnea The Veteran contends that he incurred sleep apnea as a result of his active service. To address the first element of service connection, medical evidence of a current disability, the Board reviewed the Veteran’s post service treatment. Included in these records is a September 2013 sleep procedure report which indicates the Veteran underwent a sleep study and was diagnosed with severe obstructive sleep apnea. Thus, a current diagnosis of sleep apnea is confirmed, and the first Shedden element is met. However, the Board notes that this diagnosis of sleep apnea occurred 27 years after the Veteran’s discharge from active duty service. Turning to the second and third elements of service connection, whether sleep apnea or symptoms thereof were present in service, and if so, whether there exists a nexus between service and the Veteran’s sleep apnea, the Board carefully reviewed the Veteran’s service treatment records and post-service VA records. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea. Here, the Veteran’s service treatment records reflect there was no complaint, diagnosis, or treatment for sleep apnea, to include any complaints of snoring or trouble sleeping, at any time during service. As such, the evidence of record does not reflect the Veteran suffered with sleep apnea while in service. In fact, review of the Veteran’s separation report of medical history shows that he denied trouble sleeping or shortness of breath. In addition, the Veteran’s separation medical examination shows that his lungs and chest, nose, and sinuses were evaluated as normal. The second Shedden element of service connection is thus not satisfied. Further, the Board notes that the Veteran’s post-service treatment records reflect that he was first diagnosed in September 2013 with sleep apnea. Although reference is made in these post-service treatment records to the Veteran’s sleep apnea, none of these records reflect that his sleep apnea, diagnosed 27 years after the Veteran’s discharge from active duty service, incurred in, or is otherwise related to, his active duty service. As such, the medical evidence of record does not reflect or suggest a nexus between the Veteran’s diagnosed sleep apnea and his active military service. The Board concedes that the Veteran has a current diagnosis of sleep apnea, but none of his treatment providers have provided an opinion that any such disability was related to military service. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of any evidence linking the Veteran’s sleep apnea to service. The Board has considered the Veteran’s lay statements of record. This includes the Veteran’s statement in his October 2016 substantive appeal that sleep apnea was not well understood at the time of his active service, and thus, lay evidence should be assigned more weight. While lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether sleep apnea is related to, caused by, or otherwise linked to service) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Sleep apnea is not the type of condition that is readily amenable to mere lay diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is nothing in the record demonstrating that the Veteran received any special training or acquired any medical expertise in such matters. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Furthermore, as previously noted, the Veteran’s contemporaneous statements at separation from service include a clear denial of any sleep trouble. As such, although the Board finds the Veteran to be competent to report symptoms he experienced and credible in such reports, he is not competent to assign a diagnosis or etiology to those symptoms. Thus, the lay evidence in this case does not constitute competent medical evidence and lacks probative value. In conclusion, upon consideration of all the evidence of record, the Board finds that service connection for sleep apnea is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the preponderance of the evidence is against the Veteran’s claim. There is simply no nexus between the Veteran’s diagnosed sleep apnea and his active military service. The claim is denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel