Citation Nr: 1100074 Decision Date: 01/03/11 Archive Date: 01/11/11 DOCKET NO. 09-03 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran served on active duty from April to October 1980 and from January 1981 to July 2000. This appeal to the Board of Veterans' Appeals (Board) is from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In support of his claim, the Veteran testified at a hearing at the RO in August 2010 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). During the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2010). FINDING OF FACT There is competent and credible evidence showing the Veteran began experiencing sleep apnea while in the military and that he has continued to experience the effects of this condition since his discharge from service. CONCLUSION OF LAW Especially when resolving all reasonable doubt in his favor, it is just as likely as not the Veteran's sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). However, inasmuch as the Board is fully granting the Veteran's claim, there is no need to discuss whether there has been compliance with these duty to notify and assist provisions. He is receiving the requested benefit, regardless. See, e.g., 38 C.F.R. § 20.1102 (2010) (harmless error) and Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, he, not VA, has the evidentiary burden of proof for showing there is a VCAA notice error in either timing or content and, moreover, that it is unduly prejudicial, meaning outcome determinative of his claim). II. Entitlement to Service Connection for Sleep Apnea The Veteran contends that he began experiencing sleep apnea, as evidenced by loud snoring and constant tiredness, while in the military, and that he has continued to experience the effects of this condition rather continuously since his discharge from service. And after reviewing the relevant medical and other evidence of record, the Board agrees and finds this evidence supports his claim for service connection. Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. 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 some cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in- service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, flat feet, varicose veins, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a claimed disability, VA adjudicators have the responsibility of determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. Here, there is no disputing the Veteran meets the first and indeed perhaps most fundamental requirement for any service- connection claim, which is that he has the claimed disability - namely, sleep apnea. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In the absence of this proof of current disability, there could be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). A VA outpatient treatment record from May 2006 shows this diagnosis, as do several more recently dated records up to May 2009. A VA compensation examiner that evaluated the Veteran in November 2008 also confirmed this diagnosis. As well, a private treatment record from Dr. H.K., dated in February 2009, reaffirms this diagnosis. The only remaining question, then, is whether the Veteran's sleep apnea dates back to his military service, which ended only a relatively few years earlier in July 2000. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Indeed, regarding in-service incurrence of a relevant disease or injury, the Veteran's service treatment records (STRs) from September 1999, so prior to his separation, note snoring and sleepiness, albeit with an unclear etiology. But, significantly, the evaluating physician listed sleep apnea as a possible diagnosis. So there were objective indications of this condition even while the Veteran was in service. Additionally, his April 2000 separation examination noted "loss of concentration," although did not associate this symptom with a specific disorder such as sleep apnea. He was discharged from service in July 2000. His post-service VA outpatient treatment records show subsequent complaints and treatment for sleep apnea, beginning in May 2006, when he had a sleep study. So there were only 6 relatively short years between his discharge from service and those recurring suspicions that he had sleep apnea. That sleep study confirmed he had clinically significant sleep-disordered breathing. He was reevaluated for this disorder in January and March 2007. The November 2008 VA compensation examiner observed the Veteran had failed to return for a follow-up appointment in September 1999, so while in service, to either confirm or rule out the suspected diagnosis of sleep apnea. But this VA examiner equally acknowledged the "loss of concentration" reported during the Veteran's separation examination in April 2000 as another possible indication he had sleep apnea even while in service. This VA examiner also noted the Veteran's complaints of snoring for years and sleep disruption, both symptoms of sleep apnea, which was the resultant diagnosis. Regarding the etiology of the Veteran's sleep apnea, and specifically in terms of whether it dates back to or is attributable to his military service, this VA examiner concluded that, because the Veteran had failed to return for the follow-up appointment after the initial suspicion in September 1999, "it would be mere speculation to state he had sleep apnea in 1999, without further documentation." However, this VA examiner also stated that, if it was a chronic disorder in service, the Veteran could submit further documentation of that fact. Service connection may be granted for any disease initially diagnosed after service, if the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Following that November 2008 VA compensation examination, the Veteran submitted a private treatment record from Dr. H.K., dated in February 2009. Dr. H.K. confirmed the diagnosis of sleep apnea and noted the treatment for it, but he did not provide an opinion as to a possible etiology. Nevertheless, there are other objective indications of sleep apnea beginning during the Veteran's military service and continuing during the several years since so as to, in turn, establish continuity of symptomatology and this required linkage to his service. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements - that is, to etiologically link the current disability to the disability shown in service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The Veteran testified during his recent August 2010 Travel Board hearing that he began noticing problems with loud snoring and tiredness in 1994 or 1995. He also submitted supporting lay statements from his ex-wife, daughter and a friend, dated from January to August 2010, confirming this history of loud snoring dating back to his military service and its impact on their ability to sleep when around him. His daughter said she would try to fall asleep before him when they took family trips because his snoring was so loud. She also said the only time the snoring stopped was when he stopped breathing for a moment. She described him as often looking "tired and weary." Similarly, his ex-wife recounted difficulty sleeping because of the snoring and also times when he stopped breathing altogether. The statement from his friend, a fellow soldier, recounted similar instances of "loud snoring and at times he would stop breathing for a few moments, followed with choking sounds." The Veteran's hearing testimony and supporting lay statements are competent evidence of the type of symptoms suggestive of sleep apnea, both initially during his military service and on an ongoing basis during the years since. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records). This lay hearing and written testimony also is credible since his continuous complaints and treatment for this disorder are documented throughout the record - including in the additional evidence he submitted during his recent hearing. And because this supporting lay evidence is both competent and credible, it is probative of his claim that he had sleep apnea during his service and that it has persisted during the years since. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Certainly then, resolving all reasonable doubt in his favor, it is just as likely as not the Veteran began experiencing sleep apnea while in the military, and that this condition has persisted during the years since to warrant service connection. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for service connection for sleep apnea is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs