Citation Nr: 18160332
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-56 453
DATE:	December 27, 2018
ORDER
Entitlement to service connection for sleep apnea is denied.
FINDING OF FACT
The Veteran’s sleep apnea was not shown during active service and is not related to active service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110,1131, 5107, 38 C.F.  R. §§ 3.102, 3.303, 3.304.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served from September 1972 to March 1981.  
Service Connection
The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304.  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).
Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 
1. Entitlement to service connection for sleep apnea
The Veteran asserts that he is entitled to service connection for his sleep apnea.
After a review of the evidence of record, the Board finds that service connection for sleep apnea is not warranted. 
The Veteran’s service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea while in service.  In fact, Veteran stated he was in good health in his July 1979 report of health.   
The Veteran’s post-service evidence does not reflect symptoms related to a sleep disorder for many years after the Veteran left active duty service.  The Veteran’s disability benefits questionnaire dated December 2015 reflects a diagnosis of chronic sleep disorder and the use of a CPAP machine.  The Board emphasizes that because the Veteran left active service in 1981, it was not until approximately 34 years later that he was first diagnosed with a sleep disorder.  Therefore, continuity is not established based on the clinical evidence.
As part of this claim, the Board recognizes the statements regarding the Veteran’s history of symptoms.  In this regard, while the Veteran is not competent diagnose a disorder such as sleep apnea, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
However, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is insufficient to establish service connection.  The Veteran testified that he experienced problems with sleeping while in service and would gasp for air several times each night.  In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of obstructive sleep apnea after separation from service as he was not diagnosed with sleep apnea until 34 years later.
Moreover, the Board notes that the Veteran was granted service connection for several disorders in 2011 and 2012, but he did not mention any sleep apnea symptoms during those times.  The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation related to other disorders, but made no reference to the other disability he claims now weighs heavily against his credibility.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference).  Had the Veteran had sleep apnea at that time, as he now claims, there seems to be no reason why he would not have identified them at that time.  Therefore, continuity is not established based on the clinical evidence of record or the Veteran’s statements.  
Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and either his active duty or his service-connected disability.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorder to active duty, despite his contentions to the contrary.  Specifically, none of the evidence indicates a relationship between active duty and his current disorder, and no treating physician has opined that such a relationship exists.  
The Board has also considered the statements made by the Veteran relating his sleep apnea to his active service.  The Veteran contends that he began experiencing symptoms while in service and experienced trouble with sleeping.  The Federal Circuit has held that “lay 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.”  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3.d 1372, 1377 (Fed. Cir. 2007).  In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his sleep apnea.  See Jandreau, 492 V.3d at 1377, n.4.  Because sleep apnea is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make.  
Therefore, after a careful review of the entire record, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.  Therefore, the appeal is denied.
 
B.T. KNOPE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Vample, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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