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