Citation Nr: 1135175 Decision Date: 09/20/11 Archive Date: 09/23/11 DOCKET NO. 09-38 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected gastroesophageal reflux disease (GERD) with irritable bowel syndrome (IBS), diverticulitis, hiatal hernia, and gastritis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from October 1975 to September 1978 and May 1983 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia denied service connection for sleep apnea, to include as secondary to service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis. In January 2011, the Veteran testified at hearing held before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDING OF FACT The Veteran has sleep apnea that was as likely as not incurred in active military service and is proximately due to, or the result of, his service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis. CONCLUSION OF LAW The Veteran's sleep apnea was incurred in active military service and is proximately due to, or the result of, his service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Further, a disability that is proximately due to, or the result of, a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (which holds that, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or is the result of, a service-connected condition, the veteran shall be compensated for the degree of disability, and no more, over and above the degree of disability existing prior to the aggravation). The Veteran contends that he has sleep apnea that is a result of his service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis. He contends that he first experienced symptoms of sleep apnea, to include snoring, stopping breathing at night, and daytime tiredness while on active duty. His service treatment records (STRs) include a February 1975 examination where the Veteran reported having frequent trouble sleeping. The remainder of his STRs are silent for any complaints of, or treatment for, symptoms of sleep apnea. His retirement examination in January 2000 showed no diagnosis of sleep apnea or any other sleep disorder. His STRs do however show that his GERD was incurred in service. According to post-service medical records, the Veteran was first diagnosed with moderate obstructive sleep apnea in August 2007 following a sleep study. A letter from M.B., M.D. dated in April 2009 shows that it was more likely than not that the Veteran's current diagnosis of sleep apnea began during his active service. He further opined that the Veteran's sleep apnea was proximately due to his GERD and chronic laryngitis associated with GERD. He explained that obstructive sleep apnea and GERD share an underlying connection. Dr. M.B. based his opinion on his expertise as a gastroenterologist and the Veteran's reported long history of snoring and related sleep issues. A letter from M.F., M.D., also dated in April 2009 shows that GERD and sleep apnea were opined to be interrelated. The Veteran also submitted numerous medical articles supporting a connection between GERD and sleep apnea. The Veteran's wife submitted a statement in dated in April 2009, which reveals that she noticed that the Veteran's snoring and sleep pattern dramatically changed for the worse while he was on active duty. She indicated that the Veteran would stop snoring and appeared to stop breathing. She has been married to the Veteran for over 31 years. Based on a review of the evidence, the Board finds that service connection for sleep apnea on both a direct basis and as secondary to the Veteran's service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis is warranted. Although the Veteran's STRs do not show any symptomatology subsequently associated with his sleep apnea, the Veteran has credibly reported about having experienced symptoms in service. The Veteran has indicated snoring, trouble breathing, and daytime sleepiness in service. The Veteran is also competent to report such symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Also, the Veteran's competent and credible contentions are supported by his wife's lay statement. There is nothing in the record to indicate that the wife's statement is not competent or credible. The Veteran's wife is competent to indicate witnessing the Veteran snoring and having problems breathing while sleeping in service. The Board's conclusion that service connection is warranted for sleep apnea on both a direct basis and as secondary to service-connected connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis is further supported by the positive nexus opinion from Dr. M.B. As discussed above, Dr. M.B. opined that the Veteran's sleep apnea was proximately due to his service-connected GERD. He further opined that the Veteran's sleep apnea had its onset in service. Dr. M.B. based his opinion on his medical expertise and the Veteran's competent and credible reports of the onset of his symptoms occurring in service. Although Dr. M.B. did not have the benefit of reviewing the Veteran's claims file, his opinion was predicated on his medical expertise and the Veteran's credible and competent reported history concerning the onset of his symptomatology occurring in service. Therefore, the Board finds his opinion to be probative evidence in favor of the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions and that a private medical opinion may not be discounted solely because the opining clinician did not review the claims file); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached). Dr. M.B.'s opinion is uncontradicted. In this case, the Veteran's statements, his wife's statement, and Dr. M.B.'s opinion show that the Veteran's sleep apnea was incurred in service as a result of his GERD, which was diagnosed in service. Therefore, the Board finds that service connection is warranted on both a direct basis as being directly incurred in service and on a secondary basis as proximately due, or the result of, his service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303,3.304, 3.310 Accordingly, on the basis of the objective evidence, the Veteran's competent and credible lay statements, the competent and credible lay statement of his wife, the positive and uncontradicted medical opinion from Dr. M.B., and applying the benefit-of-the-doubt doctrine, the Board finds that it is as likely as not that the Veteran has sleep apnea that was incurred in service and is proximately due to, or the result of, his service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis. The evidence is in favor of the grant of service connection for sleep apnea. Service connection for sleep apnea on both a direct basis and as secondary to his service-connected GERD with IBS, diverticulitis, hiatal hernia, and gastritis is, therefore, granted. See 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). ORDER Service connected for sleep apnea is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs