Citation Nr: 0814602	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  06-30 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Schechner, Associate Counsel


INTRODUCTION

The veteran served on active duty from September 1978 to 
September 1998.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 2005 determination by the 
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri.  The veteran testified at a Travel Board hearing in 
August 2007.


FINDING OF FACT

It is as likely as not that the veteran's current sleep apnea 
was incurred during his service. 


CONCLUSION OF LAW

Service connection for sleep apnea is established.  38 
U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.303, 
3.304, 3.306 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted if it is shown that the 
veteran suffers from a disability resulting from personal 
injury suffered or disease contracted in the line of duty, or 
for aggravation of a preexisting injury suffered or disease 
contracted in the line of duty, during active military 
service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  
Disorders diagnosed after discharge will still be service 
connected if all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 
F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection, there must be:  (1) a 
medical diagnosis of a current disability; (2) medical or, in 
certain cases, 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.  Hickson v. West, 12 Vet. App. 247, 252 
(1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd 78 F.3d 604 (Fed. Cir. 1996).  

The veteran has stated that his current sleep apnea began 
during his military service.  He stated that he has suffered 
from loud snoring for many years, accompanied by daytime 
hypersomnolence.  The veteran attests that, although it went 
undiagnosed during service, these symptoms were eventually 
diagnosed in November 2004 as borderline obstructive sleep 
apnea.

The service medical records are negative for complaints of 
sleep problems.  However, the records indicate that the 
veteran underwent a septoplasty in October 1987 after 
complaints of breathing through both sides of his nose.  

The Board notes that the veteran is service-connected for 
sinusitis status post-septoplasty and antral window surgery, 
as well as exercise-induced asthma.  The veteran has stated 
that the septoplasty in 1987 improved his snoring and 
breathing problems, although the symptoms grew worse again 
over time.

Post-service, the veteran states that he has been diagnosed 
with obstructive sleep apnea and was issued a CPAP machine 
for treatment.  The medical records submitted from St. Mary's 
Health Center verify that the veteran underwent a sleep study 
in November 2004, with a diagnosis of borderline obstructive 
sleep apnea.  

The veteran was afforded a VA examination in March 2005.  The 
opinion was that it is at least as likely as not that the 
veteran's sleep apnea has been longstanding in nature and has 
persisted even prior to his discharge from service.
 
The veteran also submitted medical opinion letters from his 
treating physician, Dr. "J.", who concluded based on the 
veteran's symptoms that he has had sleep disordered breathing 
causing daytime somnolence for 19 plus years.

The Board finds that the medical evidence from St. Mary's 
Health Center and Dr. J. is consistent with the veteran's 
stated medical history, as well as the buddy statements from 
William Randall, Jr. and Timothy Dent, despite a lack of 
medical records of sleep problems during service.

Because there is an approximate balance of positive and 
negative evidence, the benefit-of-the-doubt standard applies. 
38 U.S.C.A. § 5107(b).  Reasonable doubt as to the time of 
origin of the veteran's sleep apnea will be resolved in the 
veteran's favor.  38 C.F.R. § 4.3.  Accordingly, the appeal 
is granted.

While the veteran has been found to have "borderline" 
obstructive sleep apnea, the nature and extent of this 
disorder is not before the Board at this time. 

Duty to notify and assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (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 will not be 
further discussed.  

ORDER

Service connection for sleep apnea is granted.


____________________________________________
JOHN J. CROWLEY,
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs