Citation Nr: 20023930 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 19-04 699 DATE: April 7, 2020 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran’s sleep apnea began during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.   REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from August 1995 to February 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The Board notes that, in his October 2016 notice of disagreement (NOD), the Veteran also appealed the denial of entitlement to service connection for posttraumatic stress disorder (PTSD). In a December 2018 rating decision, the RO granted service connection for PTSD. As such, this issue is not before the Board. The further Board notes that new evidence, including VA treatment records, was associated with the claims file after the December 2018 statement of the case (SOC). Although the Agency of Original Jurisdiction (AOJ) has not had an opportunity to review all the new evidence, there is no prejudice to the Veteran in adjudicating the claim because the full benefit sought on appeal is being granted. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show a present disability (for which service connection is sought); a service-connected disability; and competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. 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 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). In addition, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).   Entitlement to service connection for sleep apnea is granted. The Veteran seeks entitlement to service connection for sleep apnea. The Veteran’s service treatment records do not reflect that he had any sleep disorders upon entry into active service, nor do they reflect that he was treated or diagnosed with a sleep disorder during active service. Post-service medical records show that the Veteran was diagnosed with sleep apnea in July 2012. Throughout the appeal period, the Veteran has stated that he first began experiencing symptoms of this condition in service. During the March 2020 Board hearing, the Veteran testified that, during his period of active service, his roommates told him that he snored and stopped breathing while sleeping. He further indicated that, during his time in service, he was unaware of the symptoms of sleep apnea. The Veteran also testified that, during his time in service, he fell asleep during meetings and briefings. He stated that, even after a good night sleep, he still felt fatigued and tired throughout the day. The Veteran further indicated that, following his separation from service, his sleep apnea symptoms persisted. He stated that significant others have always told him that he snored and stopped breathing in his sleep. They also told him that he would suddenly wake up from his sleep. The Board notes that the record does not include an opinion addressing the etiology of the Veteran’s sleep apnea. However, the Board finds that the statements of the Veteran regarding the onset of his symptoms and his symptoms since service to be competent and credible. See Layno, Vet. App. at 470; Buchanan, 451 F.3d at 1337. Moreover, the record reflects that the Veteran’s sleep disorder did not exist prior to service. In addition, the competent and credible statements, as discussed above, show that the Veteran’s sleep disorder began during service and continued post-service. As noted in the preceding paragraph, the Veteran is certainly competent to testify to symptomatology such as snoring, fatigue, and issues with breathing. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for sleep apnea is warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.