Citation Nr: 1024362 Decision Date: 06/30/10 Archive Date: 07/08/10 DOCKET NO. 06-22 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1988 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, TX. The Veteran testified at a Board hearing at the RO in January 2009 before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. FINDING OF FACT Sleep apnea manifested during the Veteran's active service. CONCLUSION OF LAW Sleep apnea was incurred during the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case as there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). The Board notes that an RO letter in March 2006 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). At the time of his May 1987 enlistment examination, the Veteran weighed 185 pounds. As seen on a June 1988 report of medical examination, the Veteran weighed 208 pounds. On a July 1993 report of medical history, the Veteran marked no when asked have you ever had or have you now frequent trouble sleeping. A July 1993 report of medical examination noted the Veteran's weight as 210 pounds. On a January 1997 separation report of medical history, the Veteran again marked no when asked have you ever had or have you now frequent trouble sleeping. A January 1997 separation report of medical examination showed the Veteran's weight at 240 pounds. At a May 2005 neurology consult, the Veteran noted that he snores very loudly at night. His wife also described apneas. The Veteran did not at that time indicate daytime hypersomnia. In June 2005, the Veteran reported excessive daytime sleepiness and fatigue as well as significant snoring and waking up confused. His wife reported periods without breathing. The Veteran's snoring was severe enough for the Veteran's wife to sleep in a different room. His weight was 300 pounds at the time of the evaluation. The examiner noted a medical history and performed a physical examination. He stated that clinical findings and physical examination strongly suggest sleep disordered breathing, i.e. obstructive sleep apnea. In August 2005, the Veteran presented the results of his June 2006 private sleep study. The Veteran was placed on a CPAP machine with good results. The Veteran was afforded a VA examination in October 2006. The Veteran reported that his bed partners and boat mates complained of his loud snoring and that they heard him stop breathing while on submarines in 1993. He also reported that he would fall asleep on duty, but was not disciplined. He noted daytime fatigue and hypersomnolence. The examiner performed a physical examination on the Veteran. He cited the Veteran's June 2005 sleep study, suggesting severe obstructive sleep apnea. The examiner also diagnosed obstructive sleep apnea. He opined that it is highly unlikely that the Veteran's service-connected sinus disability is the sole reason for his obstructive sleep apnea. Although nasal congestion may contribute slightly to feeling the trouble with breathing while asleep, many Veterans have severe sinus troubles but no problems with obstructive sleep apnea at all. The examiner then opined that it is highly likely that the Veteran's obstructive sleep apnea is related to his weight gain since he entered service. The examiner noted that the Veteran was 220 pounds upon entrance into service, 240 pounds upon separation from service, and 300 pounds at the time of the sleep study. The examiner noted the lack of records suggesting that the Veteran had sleep apnea while he was in the service. He went on to opine that it is as likely as not that the Veteran may have had some obstructive sleep apnea while in service if he was having trouble with snoring and supposedly with witnessed apneas. The examiner suggested the Veteran find some information from individuals stating that he definitely had a snoring problem and witnessed apneas while in the military. In his January 2009 hearing, the Veteran reported loud snoring in 1993 or 1994. He reported that his wife often slept in another room to avoid the noise. He also noted that on his second submarine, the men that slept in the cubicle with him requested that he let them get to sleep first because his snoring and the cessation of breathing would keep them awake. The Veteran reported that he did not seek treatment in service because he was unaware that there even was any type of treatment available or that stopping breathing during sleep was a health problem. In January 2009, the Veteran's wife, who works as a nurse, submitted a statement in support of his claim. She noted that the Veteran began snoring very loudly at night a few years after 1992. She noticed that he would stop breathing start breathing with a gasp followed by a "sort of funny snore." She also noted several occasions where the servicemen from his submarine would ask her how she could sleep with the Veteran due to his snoring and the noises he makes during his sleep. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). The medical records fail to indicate complaints of snoring, sleep apnea, or daytime somnolence during service; however, the Veteran testified during the January 2009 hearing that he did not complain during service because he did not realize it was a serious medical problem or that any treatment for snoring was available. The Board acknowledges that the Veteran and his wife are certainly competent to testify as to symptoms such as daytime somnolence and complaints of snoring, which are non-medical in nature. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). Additionally, the Board notes that the Veteran's wife has medical training as a nurse. In her January 2009 statement, she described the apneas observed during the Veteran's period in service. Therefore, the Board finds the lay evidence of snoring and apneas during service to be credible. The October 2006 VA examination appears to support the Veteran's contention that his sleep apnea began during service. The examiner opined that it is highly likely that the Veteran's obstructive sleep apnea is related to his weight gain since he entered service. The examiner incorrectly reported the Veteran's entrance weight as 220 pounds, showing a 20 pound weight gain during service. The Veteran's May 1987 enlistment examination actually reported the Veteran's entrance weight as 185 pounds. Therefore, the Veteran gained 55 pounds during service. The Board acknowledges that the Veteran's weight reached 300 pounds by the time of the June 2005 sleep study, showing that the Veteran gained an almost equal amount of weight during and after service. As the examiner opined that the Veteran's sleep apnea is likely related to weight gain but did not specify whether the weight gain was during or post-service, the Board finds it equally as likely to have begun during service as after service. Additionally, the examiner noted the lack of records suggesting that the Veteran had sleep apnea while he was in the service. He went on to opine that it is as likely as not that the Veteran may have had some obstructive sleep apnea while in service if he was having trouble with snoring and supposedly with witnessed apneas. As stated above, the Veteran and his wife are competent to testify regarding his trouble snoring and his witnessed apneas. As the record contains competent evidence of these events, the examiner's opinion supports the statement that it is as likely as not that the Veteran had some obstructive sleep apnea while in service. The Board acknowledges that all doubt is to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); also see generally Gilbert v. Derwinski, 1 Vet. App 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The October 2006 VA examination is not definitive in relating the veteran's sleep apnea to service. However, when considering the totality of the evidence, including the Veteran's observed apneas during service, his weight gain during service, and the October 2006 VA examination findings, the Board finds that the Veteran's sleep apnea began during service. Therefore, service connection for sleep apnea is granted. ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ ROBERT C. SCHARNBERGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs