Citation Nr: 0827317 Decision Date: 08/13/08 Archive Date: 08/18/08 DOCKET NO. 07-06 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from October 1973 to July 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. FINDING OF FACT The evidence of record shows that the veteran's sleep apnea is related to his active military service. CONCLUSION OF LAW Sleep apnea was incurred during military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002), 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. The veteran is seeking service connection for sleep apnea. He contends that this condition began during his active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and 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). Historically, the veteran served on active duty in the Air Force from October 1973 to July 2003. An inservice treatment report dated in May 2000, indicated that the veteran requested to be evaluated for sleep apnea due to snoring heavily. A post service VA examination report dated in November 2003, noted the veteran's history of heavy snoring. The report indicated that the veteran had not previously been diagnosed with sleep apnea. The report also indicated that the veteran slept six hours at night, and napped one hour during the day, three times a week. A treatment report dated in May 2004, noted the veteran's request for an evaluation for possible sleep apnea. The report indicated that the veteran's spouse had noticed his gasping for breath while sleeping. It was also noted that veteran did not feel rested after sleeping. Thereafter, in July 2005, the veteran underwent a polysomnogram. The report of this testing concluded with a diagnosis of obstructive sleep apnea. A statement from the veteran's spouse dated in October 2005, noted the veteran's long history of snoring, which had grown louder. She indicated that as his snoring increased, the veteran began complaining of feeling tired. She indicated that he started to take naps during the day in the mid to late 1990s. A statement dated in October 2005 from a retired Master Sergeant who served with the veteran, noted that he shared sleeping quarters with the veteran during service. He indicated that the veteran snored loudly. He also reported that on one occasion in 1997 or 1998, while in Saudi Arabia, he became alarmed and woke the veteran up because it appeared to him that the veteran had stopped breathing in his sleep. At a hearing before the Board in May 2008, the veteran testified that he first noticed feeling tired in 1996. He indicated that he requested, but did not receive, a sleep study during military service. The veteran's spouse testified that she had been married to the veteran for 25 years. She indicated that the veteran had always snored, but that this condition began to significantly worsen around 1997. After reviewing the evidence of record, the Board finds that the veteran's current obstructive sleep apnea cannot be reasonably disassociated from this military service. In making this decision, the Board finds the testimony provided by the veteran and his spouse concerning the onset of sleep apnea symptoms to be credible. Their testimony is further supported by the clinical evidence of record. There is inservice evidence of the veteran requesting an evaluation for sleep apnea while in service due to symptoms of sleep apnea. The veteran's complaints of sleep apnea symptomatology continued after military retirement. The record reveals that the first time the veteran was able to receive proper testing, two years after military retirement, the study concluded with a diagnosis of sleep apnea. Based on the totality of the evidence, and with application of the benefit-of-the-doubt rule of 38 U.S.C.A. § 5107(b), the Board finds that the veteran currently has sleep apnea which was incurred during his active military service. Accordingly, service connection for sleep apnea is warranted. ORDER Service connection for sleep apnea is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs