Citation Nr: 1101174 Decision Date: 01/11/11 Archive Date: 01/20/11 DOCKET NO. 08-12 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and T. L. ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service from June 1980 to June 1984 and again from September 1984 to September 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT Obstructive sleep apnea has been shown by competent evidence to be causally related to the Veteran's active service. CONCLUSION OF LAW Obstructive sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 (VCAA) that became law in November 2000. The VCAA provides, among other things, that the VA shall make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by the VA. The VCAA also requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.59 (2010). The Board's decision in this case represents a complete grant of the benefit sought on appeal. As such, the Board finds that any deficiency in the VCAA notice does not prejudice the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the Board is satisfied that all relevant evidence has been obtained. Consequently, the case is ready for appellate review. Legal Criteria The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, extensive evidence submitted by the veteran or on his behalf. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Regulations also provide that 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) (2010). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To establish service connection for a disability, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Regulations also provide that 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) (2010). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). Legal Analysis The Veteran asserts that service connection is warranted for sleep apnea. In order to establish service connection on a direct-incurrence basis, the Veteran must provide evidence of a current disability, an in-service injury or disease, and a nexus between the current disability, and an in-service injury or disease. With respect to a current disability, post-service treatment records show that the Veteran has been diagnosed with, and treated for, obstructive sleep apnea since December 2005. With respect to an in-service injury or disease, the Veteran's service treatment records are silent for complaints of, a diagnosis of, or treatment for sleep apnea. Nevertheless, the Veteran contends that he began experiencing sleep apnea while in service. Indeed, during his January 2010 RO hearing, the Veteran testified that starting in the mid-1980's he began having trouble staying awake and began having others complain that his loud snoring disturbed them. During his November 2010 Videoconference before the Board, the Veteran again testified that he began having problems sleeping since 1987 and that during that time he was constantly tired and no matter how much sleep he had had, he felt exhausted all of the time. The Veteran also reported that he would wake up gasping for air like he was choking. He also indicated that fell asleep numerous times while driving and had his military driving privileges taken away. (Transcript (T.) at page (pg.) 5.) In support of his claim that his sleep apnea began in service, the Veteran submitted an undated letter, in April 2007, from R. W. P., who indicated that he had served with the Veteran as the Corpsman for Inspector-Instructor Staff, Fox Company, 2nd Battalion, 25th Marines, 4th Marine Division (REIN), New Rochelle, New York. According to R. W. P. , he noticed that on numerous occasions the Veteran suffered from loud snoring with the cessation of breath that occurred 30 to 50 times per hour and that usually on the next day, his symptoms would include lethargy and drowsiness which resulted in his falling asleep during activities that required attention. R. W. P. also wrote that the Veteran lived in base housing and had to travel 71 miles to work, which was a hazard, and on two occasions fell asleep while driving, which caused his military driving privileges to be revoked. R. W. P. further noted that on occasion the Veteran's symptoms caused other moderate problems with work performance and social functioning. He also indicated that he diagnosed the Veteran with obstructive sleep apnea with hypersomnia but that the required paper work was never entered into the Veteran's health record. In a March 2007 letter, as well as during the January 2010 RO hearing and the November 2010 Videoconference hearing, the Veteran's spouse, T. L. testified that since the first night that she slept together with the Veteran in 1999, he experienced really loud snoring, that it seemed like he was not breathing, and that sometimes he would wake up startled and gasping for breath. See November 2010 Videoconference Hearing Transcript (T.) at page (pg.) 6-7.) In June 2008, the Veteran submitted a statement from V.M., a fellow Marine, who was stationed on recruiting duty with the Veteran from January 1994 to February 2000. According to V. M. during that six year period, he was billeted and travelled with the Veteran and that he noticed that the Veteran would snore very loudly and would seem to hold his breath or stop breathing on many occasions nightly and that several times he would awaken with choking sounds that startled him and others. He indicated that several times, he would awake the Veteran to see if he was alright and informed the Veteran that he should see a doctor about his condition because it could be dangerous to his health. V. M. also wrote that other fellow Marines would also comment on these occurrences. V. M. also noted that the Veteran told him that no matter how many hours of sleep he had he would still be sleepy throughout the day. V.M. further indicated that when it came to driving that no one who knew the Veteran would let him drive and that on one occasion, he fell asleep in slow moving traffic and nearly struck the vehicle in front of them. Additionally, V. M. wrote that when he and the Veteran were in class, he would frequently have to stand up at the rear of the classroom to avoid falling asleep during a period of instruction and that he witnessed one occasion where the Veteran was interviewing an applicant and dozed off while asking screening questions. According to V. M., these behaviors were not one time occurrences but happened nearly every time, he was either billeted with, driving with, or participating in daily work activities for the entire six year period that he was stationed with the Veteran. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Board finds that Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experienced sleeping problems, gasping for air, difficulty staying awake during the day, and constant fatigue during and since service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Likewise, the Veteran's spouse and the other documented eyewitnesses of record are competent to report what they saw and heard. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a veteran and other persons can attest to factual matters of which they had first-hand knowledge, e.g., experiencing loud noises in service and witnessing events). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Board finds no reason to believe that the statements of the Veteran, his wife, and other documented eyewitnesses are less than credible. Indeed, such statements are consistent with the Veteran's service treatment records which show that he complained of, and was treated for respiratory/pulmonary symptomatology, including shortness of breath, on numerous occasions, a June 1995 private physician's report, of a May 9, 1995 consultation with the Veteran, which shows that the Veteran reported a history of snoring at night, and June and July 1995 private treatment reports which show increased shortness of breath at night. With respect to whether the Veteran's current sleep apnea is related to service, in April 2010, a VA examiner after an examination of the Veteran and a review of his claims file, including his service treatment records, a January 2010 statement from Dr. S. K. (which will be discussed below), and the aforementioned lay statements, opined the Veteran's sleep apnea was not caused by or a result of service. In reaching this conclusion, Dr. A. I. stated that: There is no documentation of complaints of, or treatment for, sleep apnea in the service medical records. There are letters in the c-file from men that served with the Veteran who mention that he snored at night. The prevalence of snoring is much more common tha[n] sleep apnea. Polysomnography has demonstrated that not all people that snore have sleep apnea. Snoring can fragment sleep leading to complaints of fatigue without causing apneas...A letter from Columbus Sleep Consultants in the c-file mentions that the Veteran's upper airway anatomy is abnormal. He also has a history of asthma...[A]sthma can be worse at night causing nocturnal bronchospasm and paroxysmal dyspnea which could be mistaken for sleep apnea by an observer...Sleep apnea was diagnosed in 2005 which was 3 years following discharge. In contrast, the VA examiner's April 2010 opinion, is a May 2009 statement from one of the Veteran's treating physician's from OSU Family Practice who stated that the Veteran had been his/her patient since 2001 and had been diagnosed with, and treated for obstructive sleep apnea. According to the examiner, "review of records dating back to 1983 was done by me, and in my opinion contains sufficient evidence of obstructive sleep apnea having been present, but not diagnosed at that time." Additionally, in January 2010, Dr. S. K., one of the Veteran's treating physicians's stated that: After reviewing all of the service medical and treatment records, I can state based on my medical experience, education and training, that [the Veteran] has suffered from long standing obstructive sleep apnea for much of his adult life and that without question this condition existed during his service in the Marine Corps (1980-2002). In a November 2010 letter, Dr. S. K. provided another medical opinion regarding the etiology of the Veteran's sleep apnea. In referencing the Veteran's medical history for the disease, including the aforementioned clinical evidence and lay statements, Dr. S. K. noted that in the Veteran's service treatment records, there were numerous complaints of shortness of breath at night (May 1983, June 1989, and May, June, and July 1995. He also noted that in July 1995, Captain B. B., USAF, MC, Internal Medicine Resident, noted the Veteran's abnormal upper airway and complaints of shortness of breathe particularly at night. He also noted that Major T. P., USAF, MC, Pulmonary Medicine also noted the Veteran's abnormal airway. He also noted that the Veteran had elevated blood pressure readings throughout his career (9 entries with diastolic readings greater than 90mm/Hg) beginning in June 1984. Dr. K. further opined: Although [the Veteran's] diagnosis of obstructive sleep apnea was not formalized until December 2005, it is my opinion, based on my medical education, training, and experience that [he] has suffered from obstructive sleep apnea for most of his adult life. Obstructive sleep apnea is characterized by upper airway obstruction leading to hypoventilation, apnea and sleep fragmentation. Patients without the typical risk factors, such as obesity, should raise a clinical suspicion of abnormal anatomy as a cause of obstructive sleep apnea. The Mallampati classification correlates tongue size to pharyngeal size. Classification is assigned according to the extent the base of the tongue is able to mask the visibility of the pharyngeal structures. I have determined that [the Veteran] has a Mallampati score of 4 (there are four classifications with a score of 4 being most restrictive). Patients with a high Mallampati score (4) have a higher probability of Sleep Disordered Breathing (SBD), because the oral airway is smaller. Obstructive sleep apnea is a mechanical issue which is in consisten[t] with the findings of Major [P.] and Captain [B.], both of whom report that [the Veteran] has abnormal upper airway anatomy. The witness statements describe sleep behaviors consistent with obstructive sleep apnea from 1987 through the end of his active duty career in September 2002. Of particular significance in the descriptors of the witness statements is the fact that no mention is made of [the Veteran's] need for an inhaler or nebulizer to restore his breathing. A nocturnal asthma attack would require [the Veteran] to use his inhaler or a nebulizer to restore his breathing. He was diagnosed with asthma in 1995 and the statements do not mention his need for such treatment. [The Veteran's] breathing was restored when he awakened which is a characteristic of obstructive sleep apnea. [The Veteran's] medical records do not indicate any complaints of asthma until 1995. Mr. [P.'s] statement is from the period of 1987 to 1990 and makes no mention of [the Veteran] requiring a rescue inhaler to restore normative breathing. All witnesses describe that [the Veteran] felt as if someone were choking him. I find that the witness statements are more consistent with an obstructive sleep apnea episode rather than a nocturnal asthma event. It is my opinion, based on the witness statements which describe observable characteristics including hyponeas (breath holding, gasping for air, choking), the observations of extreme daytime sleepiness and the physical upper airway abnormalities that [the Veteran's] obstructive sleep apnea more likely than not existed while he was on active duty in the Marines from June 1980 to September 2002. The witness statements from 1987 to 2002, medical reports from the Service Medical and Treatment Records as well as private medical records citing elevated diastolic blood pressure readings, shortness of breath particularly at night, his physical upper airway abnormalities including a deviated septum, hypertrophic tonsils, dependent palate, thick elongated uvula, broad tonsilar pillars and broad based tongue document the complaints, findings, and physical attributes which are consistent with the symptoms and characteristics of obstructive sleep apnea having been present during the entirely of his military career but undiagnosed. In weighing the clinical evidence of record, the Board finds that the April 2010 VA opinion and Dr. S. K.'s November 2010 opinion, where both examiners provided detailed ,well-supported rationales for their conclusions, to be competent, highly probative medical evidence as to whether the Veteran's current obstructive sleep apnea was incurred in service. As such, the Board finds that the evidence of record is in equipoise as to the issue on appeal. With resolution of doubt in the Veteran's favor, the Board finds that the evidence of record supports service connection for obstructive sleep apnea. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). ORDER Entitlement to service connection for obstructed sleep apnea, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs