Citation Nr: 18124053
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-17 193
DATE:	August 3, 2018
Entitlement to service connection for obstructive sleep apnea is denied.
The Veteran does not have a current diagnosis obstructive sleep apnea.
The criteria for service connection for obstructive sleep apnea have not been met.  38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).

The Veteran served on active duty from June 1982 to June 2008. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In November 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file.
The Veteran contends his obstructive sleep apnea manifested during his active duty.
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez v. Principi, 259 F.3d. 1356 (2001).
The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
In rendering a decision on appeal, the Board must also 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”).
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See 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. at 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. See Barr, 21 Vet. App. at 303. 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. See Jandreau, 492 F.3d 1372, 1377. 
The Veteran contends his obstructive sleep apnea is a result of his active service. However, the Board finds that a preponderance of the evidence is against a finding of a current diagnosis of sleep apnea, and the Veteran’s claim will be denied.

In an April 2004 service treatment record, the Veteran complained of trouble breathing at night while sleeping. In a May 2005 service treatment record, the Veteran reported still feeling tired after sleeping. In an April 2006 service treatment record, the Veteran reported frequent trouble sleeping and stated he could not sleep through the night.  A January 2008 service treatment record noted the Veteran complained of sleep and breathing issues dating back to a tour in Iraq in 2004. A February 2008 service treatment record noted a “mismatch of sleep/wake schedule with lifestyle needs.”
In October 2008, the Veteran reported ongoing sleep problems and was referred to a sleep clinic. In November 2008, the Veteran underwent a sleep study with a diagnosis of “r/o OSA.” The impression was that the Veteran “does not present features of a significant sleep related breathing disorder.” The Veteran underwent a second night of sleep study in November 2008, and a diagnosis of OSA was reported. A March 2009 VA treatment record noted that the Veteran had no significant sleep disordered breathing polysomnography (PSG) test and that the Veteran had been erroneously scheduled for the second sleep study.
A June 2015 VA examination report and opinion notes a review of the record and recounts the Veteran’s claims. The examiner opined that it was less likely than not that the Veteran has sleep apnea that had its onset in service. The rationale indicated that the Veteran does not have a confirmed diagnosis of sleep apnea based on a review of the records. The November 2008 sleep study did not show evidence of sleep disordered breathing or sleep apnea.
The Board finds the June 2015 VA examiner’s opinion to be the most probative evidence of record regarding the current nature, diagnosis, and etiology of the Veteran’s sleep apnea. The examiner took the Veteran’s history and reviewed the objective record. The examiner also provided a clear and persuasive rationale with citation to the record, and the basis of such rationale is consistent with the record.

While the Veteran has reported symptoms of trouble sleeping, the weight of the evidence demonstrates no diagnosis of obstructive sleep apnea upon which to grant service connection. During the December 2017 hearing, the Veteran testified that he was prescribed and used a CPAP machine for sleep apnea. The Veterans Law Judge informed the Veteran of the need to submit evidence of this, because the medical evidence of record did not substantiate the Veteran’s assertion. The Veteran was afforded an additional 60 days to provide such evidence. To date, no additional evidence has been received demonstrating that the Veteran has a diagnosis of obstructive sleep apnea. The Veteran submitted evidence duplicative of previously obtained evidence. Although the second November 2008 sleep study noted a diagnosis of obstructive sleep apnea, the record indicates that this was erroneous and the Veteran has not demonstrated sleep disordered breathing or sleep apnea.
As the evidence demonstrates no current disability of obstructive sleep apnea upon which to base a grant of service connection, at any time during the appeal period, there can be no valid claim for that benefit. See Shedden, 381 F.3d at 1167; Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 143-44. Because a current disability has not been shown by competent evidence, the Board does not reach the additional questions of in-service injury, disease, or event, or the relationship between any such current disability and service.

Accordingly, service connection for obstructive sleep apnea is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56.
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Duthely, Associate Counsel 

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