Citation Nr: 1124464	
Decision Date: 06/28/11    Archive Date: 07/06/11

DOCKET NO.  10-28 178	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Heather M. Gogola, Counsel



INTRODUCTION

The Veteran served on active duty from June 1985 to March 2007.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.


FINDING OF FACT

The Veteran's obstructive sleep apnea originated during his active service


CONCLUSION OF LAW

Obstructive sleep apnea was incurred during active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2010).

Legal Criteria

Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with active service, or if preexisting such service, was aggravated therein.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

The Veteran contends that service connection is warranted for his sleep apnea because it originated during his active service.

Service treatment records are negative for a diagnosis of sleep apnea.  However, a September 2001 record notes complaints of loud snoring.  A sleep study was recommended.  A November 2001 sleep study disclosed normal sleep efficiency with a somewhat decreased slow wave sleep.  There was no sleep-disordered breathing or periodic limb movement, arrhythmias or significant oxygen desaturation noted.  Snoring was noted throughout the study.  Service treatment records are otherwise silent for any sleep disorders.

The report of a March 2007 VA examination for sinusitis notes that the Veteran had symptoms of chronic nasal congestion, and loud snoring beginning in 2001.  

Records from Marien Hospital dated from November 2008 to March 2009 note that pulmonary function testing showed normal findings with a slight medium-high grade obstruction, restrictive absolute-relative hyperdistension.  A November 2008 sleep study showed hypopnoeas when positioned on the side with an increased number of hypopnoeas and apneas when the Veteran was sleeping on his back.  APAP therapy was recommended and a subsequent study found a good degree of sleep efficiency with the APAP therapy.  A final diagnosis of obstructive sleep apnea was entered in March 2009.

In reviewing the evidence of record, the Board has found no reason to doubt that the Veteran's sleep apnea originated during his active service.  Although a diagnosis of obstructive sleep apnea was not established until approximately one year following the Veteran's discharge from service, it is evident that symptoms of the disability were manifested in service and continued thereafter.  Accordingly, the Veteran is entitled to service connection for this disability.


ORDER

Service connection for obstructive sleep apnea is granted.



____________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs