Citation Nr: 1105871 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 07-18 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran requested a personal hearing before the Board in correspondence dated in May 2008, but no hearing has been scheduled. However, in view of the fact that the Veteran's representative submitted an informal hearing presentation in January 2011 and the Board is granting the full benefit sought on appeal, the Board finds that the Veteran will not be prejudiced by the absence of a Board hearing. In addition, the Board notes that the Veteran has submitted a service treatment record that does not appear to be a duplicate of any already in the claims file. The representative waived initial RO consideration of this additional evidence, which the Board accepts for inclusion in the record. See 38 C.F.R. § 20.1304(c) (2010). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, obstructive sleep apnea had its clinical onset during the Veteran's period of active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the Court. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision regarding the Veteran's claim for service connection for obstructive sleep apnea, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for granting the Veteran's claim at present without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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, (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 (Fed. Cir. 2007). Factual Background and Analysis The Veteran seeks service connection for obstructive sleep apnea, originally claimed as sleep difficulties. He asserts that his current sleep apnea first manifested during his period of active service. He contends that he had sleeping difficulties during his 20-year term of active duty and was diagnosed with obstructive sleep apnea within months of separation from service. Service treatment records do not show treatment or diagnosis of sleep apnea. However, a December 2002 CT tomography of the sinus showed that the Veteran had a deviation of the nasal septum towards the right side. An August 2005 service treatment record noted that the Veteran reported some trouble sleeping, including staying asleep, and that his wife had told him he snored. The examiner recommended that the Veteran undertake a sleep study after discharge. A December 2005 note to the Veteran's discharge examination noted that the examiner diagnosed sleep difficulties as one of his disorders. Post-service, the Veteran has been service-connected for several issues, including chronic rhinitis and gastroesophageal reflux disease (GERD). The Veteran underwent a VA examination in June 2006 for other issues. It was noted that the Veteran had a 40 percent nasal obstruction on the left side and that he had frequent difficulty breathing through his nose. Private medical records dated in April and August 2006 show that the Veteran underwent a polysomnography after being referred for complaints of loud snoring, pauses in breathing and leg jerks during sleep, insomnia, and serious sleep problems. Z.E., M.D., noted that the Veteran's sleep problems started 8 years before, or 1998 some seven years before the Veteran's discharge from service. Obstructive sleep apnea syndrome was diagnosed after the polysomnography. The Veteran underwent a VA general medical examination in August 2006. It was noted that sleep apnea had its onset in 1998. The Veteran reported a gradual onset or increase in snoring as well as daytime sleepiness. It was noted that his injury or disease occurred during active service, and not before or after. The Veteran underwent a VA examination for sleep apnea in November 2007. The Veteran complained of snoring problems since approximately 1988, but said that he did not know this was a treatable condition. Within a year of discharge from active duty he went to a private doctor who diagnosed sleep apnea and placed him on a C-PAP machine. Diagnosis was sleep apnea. The November 2007 VA examiner opined that it was less likely as not that the Veteran's sleep apnea was caused by or a result of military service because the Veteran had not been diagnosed with sleep apnea during his active duty service. Based upon a review of all the evidence of record, the Board finds that service connection for obstructive sleep apnea is warranted in this case. As noted above, the Veteran currently is diagnosed with obstructive sleep apnea. Accordingly, the first requirement for service connection is met as the Veteran has been diagnosed with a current disability. An August 2005 service treatment record and a December 2005 note to his discharge examination document the Veteran's complaints of sleeping difficulties during his final year of active duty. The Board also finds competent and credible the lay evidence as set forth above as to the Veteran's symptoms associated with his obstructive sleep apnea. The United States Court of Appeal for the Federal Circuit (Federal Circuit) has explicitly rejected the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In this case, the Board finds that the lay statements of the Veteran describing the onset and chronicity of the symptoms associated with obstructive sleep apnea first manifested during service to be credible and supported by the later diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the second requirement for service connection is also met for this claim. With respect to the third requirement, the Board finds that the August 2006 opinion of Dr. Z.E. and the November 2007 opinion of the VA examiner are at the very least in equipoise. The Board also notes that the 2007 VA examiner, when he opined there was no relationship or nexus between the Veteran's current sleep apnea and service, failed to discuss the private medical evidence showing the onset of sleep apnea during service and the August 2006 VA examiner's notations that the disease occurred during active service and not before or after. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board finds that under the circumstances of this case, upon granting the Veteran the benefit of the doubt, the August 2006 private medical opinion of Dr. Z.E. and the notations of the August 2006 VA examiner concerning the onset of sleep apnea are sufficient to provide proof of a nexus, or relationship, between the Veteran's currently diagnosed obstructive sleep apnea and his 20-year period of active military service. Therefore, the Veteran has a medical opinion linking a diagnosed sleep apnea disorder to service. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Resolving all doubt in the Veteran's favor, the Board further finds that the third requirement for service connection for obstructive sleep apnea is met. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted for the Veteran's obstructive sleep apnea. As the Board finds that the Veteran has provided evidence of all three elements required for a grant of service connection for his claim, the claim for service connection for obstructive sleep apnea is granted. (CONTINUED ON THE FOLLOWING PAGE) ORDER Service connection for obstructive sleep apnea is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs