Citation Nr: 0808685 Decision Date: 03/14/08 Archive Date: 03/20/08 DOCKET NO. 06-15 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served on active duty from June 1992 to November 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO), which denied the claim of entitlement to service connection for sleep apnea. FINDING OF FACT The medical evidence of record demonstrates that it is as least as likely as not that the veteran's sleep apnea began in his service. CONCLUSION OF LAW When resolving all doubt in the veteran's favor, the evidence shows that the veteran's sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist In view of the favorable decision in this case, a detailed discussion addressing whether the mandates of the Veterans Claims Assistance Act of 2000 (VCAA) compliance is not warranted. To the extent necessary, VA has fulfilled its duty to notify and to assist the veteran in the development of his claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). As the veteran's claim of entitlement to service connection for sleep apnea has been granted, the Board finds that there is no reasonable possibility that further assistance would aid the veteran. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Pertinent Laws and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303(a). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic disability in service or during an applicable presumptive period and still has such disability. Such evidence must be medical unless it relates to a disability as to which, under the United States Court of Appeals for Veterans Claims' (Court's) case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a disability noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). When a reasonable doubt arises regarding service origin, the degree of disability, or any other material point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2007). In order to prevail on the issue of service connection there must be (1) medical evidence of a current disability; (2) medical evidence or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative balance, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b) (West 2002). III. Analysis The veteran contends that his current sleep apnea began in service but went undiagnosed. With respect to a Hickson analysis, in terms of Hickson element (1) there is evidence of current sleep apnea. In January 2005, the veteran was diagnosed with obstructive sleep apnea syndrome. Polysomnographic testing was done and he received an apnea-hypopnea index of 48.6. With respect to the questions of whether there is medical evidence of an in-service injury, and a nexus between that in-service injury and the current disability, in satisfaction of Hickson elements (2) and (3), the Board must rely upon the weighing of the medical evidence that has been associated with the veteran's claims file since service. In that regard, it is noted that two letters from Dr. B.G are in the file, a statement from a medical technician, along with a VA examination, medical treatment records and service medical records. The service medical records show that in 1998 the veteran complained of problems oversleeping. He also complained of drowsiness during the day and morning headaches and noted a history of hypersomnolance and snoring. The examiner suggested that a sleep study be done, however, there was no follow up conducted. The veteran's wife submitted a June 2006 statement, as she is also a medical technician. She stated that the veteran showed signs of sleep apnea when they began dating in 2002. A May 2006 letter from Dr. B.G. states that he is "suspicious" that sleep apnea was present between the years 1998 and 2000 based on the veteran's symptoms. The doctor went on to say he could not substantiate his hypothesis because testing was not done while the veteran was in service. The doctor stated that he could only speculate that the sleep apnea began in service based on the veteran's symptomatology. The veteran was afforded a VA examination in December 2005. The examiner stated that the evidence in favor of obstructive sleep apnea during the veteran's service is primarily subjective. The examiner indicated that the veteran's symptoms while in service of excessive daytime drowsiness despite sufficient sleep at night, morning headaches, and weight gain are generally associated with obstructive sleep apnea but stated that he could not verify that sleep apnea was present during service without resorting to speculation. The Board notes the February 2005 statement from Captain A.J. that the veteran was diagnosed with and required treatment for obstructive sleep apnea while on active duty. This statement has no probative value because the evidence contained in the service medical records clearly contradicts any such diagnosis and treatment during active duty. Nevertheless, the Board finds that although the evidence clearly shows a current sleep apnea disability, there is at least an equal balance of positive and negative evidence that the sleep apnea in question began in service. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt shall be afforded to the veteran. See 38 U.S.C.A. § 5107(b). Although the VA examiner's and Dr. B.G.'s opinions were somewhat equivocal, symptoms consistent with sleep apnea were documented in service. Testing for apnea was recommended, and the veteran's claim does not fail simply because the military failed to carry out the recommendation. With two examiners noting the consistency of the inservice symptoms with the current sleep apnea and the possibly of apnea present at the time of service, the veteran is given the benefit of the doubt. Therefore, entitlement to service connection for sleep apnea is warranted. ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs