Citation Nr: 1137034 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 09-25 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981, January 1984 to May 1984, March 1991 to April 1992, and September 1992 to October 1994, and March 2005 to June 2006, including service in Afghanistan from May 2005 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was afforded a Travel Board hearing in June 2011. A copy of the transcript has been associated with the claims folder. FINDINGS OF FACT There is competent and credible evidence that the Veteran has had continuing, symptoms of sleep apnea from service to the present, and there is a current medical diagnosis for obstructive sleep apnea. CONCLUSION OF LAW Service connection for obstructive sleep apnea is granted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There must be competent evidence showing the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Caluza element is a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that lay persons are not competent to opine as to medical etiology or render medical opinions. See Barr, at 307; see also Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494-95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 [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")]. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran seeks service connection for sleep apnea. In September 2007 the Veteran sought VA treatment reporting that he experienced daytime drowsiness. He and his wife reported that since his return from overseas tours, he snored and experienced possible short periods of sleep apnea wherein he stopped breathing. In October 2007 the Veteran underwent a sleep study, and based on the severity of the results, the Veteran was placed on a continuous positive airway pressure machine (CPAP). The Veteran filed his claim for service connection in November 2007. In March 2008, the Veteran's wife submitted a statement that her husband did not have sleep apnea prior to Afghanistan, but that when he returned he experienced episodes of day time sleepiness, his breathing stopped for more than 60 seconds at night, and he had excessive leg and arm movements when he stopped breathing. She also indicated that the Veteran snored so loudly at night that it kept her awake. In November 2008, the Veteran explained his delay in seeking treatment was due to his preoccupation with his wife's health, as she had four major surgeries, including a heart valve replacement during the time frame that he became aware he was experiencing sleep difficulties. In July 2009, the Veteran submitted articles relating to obstructive sleep apnea from emedicine, as well as from The New England Journal of Medicine. The Veteran highlighted portions of the articles relating that those with obstructive sleep apnea may be with or without excessive daytime sleepiness, and that 24 percent of middle-aged men had undiagnosed sleep-disordered breathing. In his Substantive Appeal, the Veteran listed objective symptoms of obstructive sleep apnea, including loud, excessive snoring, interrupted breathing, and limb movements during sleep, and explained that he had not had a roommate during his time in Afghanistan, such that his symptoms were not apparent until his return home (as explained below, his wife observed the sleep disturbances within one week of his return from Afghanistan, and then informed him of them). The Veteran was afforded a VA examination for his sleep apnea in August 2009, wherein his claims folder was reviewed. The Veteran reported that prior to leaving for Afghanistan in 2005 he had not experienced sleep problems, but on his return in 2006 his wife informed him that he was snoring and having apneic spells during the night. He reported that he did not seek medical treatment while in Afghanistan because he had a private room, and there was no one to observe his sleep patterns and inform him of his disrupted sleep. The Veteran reported that he had been diagnosed with sleep apnea in October 2007, and was started on a CPAP which treatment he continued. On examination, the Veteran's medical history was negative for a history of hospitalization or surgery, lung or chest trauma, respiratory system neoplasm, pulmonary embolism, respiratory failure, fever, hemoptysis, night sweats, orthopnea, paroxysmal nocturnal dyspnea, shortness of breath, swelling, weight change, or non-angina chest pain. The Veteran's history was positive for a history of a nonproductive cough, and sleep-related problems of snoring and sleep disruption. Chest X-ray findings were within normal limits. The Veteran was noted to be employed full-time as a physician's assistant, and he had not lost any time from work during the previous 12-month period in relation to his sleep apnea. As for functional effects, his sleeping was moderately affected. The examiner reasoned that there was no evidence of treatment related to sleep apnea during active duty. The examiner reviewed the current treatment, reported history and the Veteran's wife's statements regarding sleep apnea. The examiner concluded that the Veteran's current sleep apnea was less likely than not caused by or a result of complaints in service. He opined that no chronic sleep apnea condition was established while on active duty, and there was no evidence of treatment for compensable sleep apnea within one year of active duty. At his June 2011 hearing, the Veteran's wife explained that the Veteran had not experienced sleep problems prior to his deployment to Afghanistan, but that within a week of his return, she noticed that he was snoring and experiencing disrupted breathing while he slept. The Veteran's wife indicated that she brought the sleep problems to the Veteran's attention; however, she did not otherwise pursue it because she was dealing with her own health problems. The Veteran again explained that there was a delay in his pursuit of a diagnosis and treatment, because his family was managing his wife's health problems, including her three surgeries, and also celebrating a daughter's wedding during the timeframe during which he became aware that he had a sleep problem and sought treatment. When he pursued treatment, the Veteran was diagnosed with sleep apnea. The Veteran explained that while he had been in Afghanistan he did not share a room with anyone else. The Veteran clarified that he did not experience daily symptoms related to his sleep apnea, and that he was aware of it only because his wife informed him of his disrupted sleeping patterns, to include snoring extremely loudly, having restless legs, and experiencing halting breathing at night. The Veteran indicated that he wore a CPAP mask when he slept. In summary, VA treatment records show that the Veteran was diagnosed as having sleep apnea, and has used a CPAP machine for treatment since his October 2007 sleep study was positive for apneic episodes. As noted, the Veteran and his wife have consistently contended that he did not have sleep disturbances prior to his deployment, but that within a week of his return from Afghanistan his wife noticed that he was snoring, experiencing restless legs, and halting breathing. They have credibly maintained that his problems sleeping continued since service, and the Veteran is currently using a CPAP machine for treatment. The Veteran and his wife are competent to discuss their observations regarding his snoring, limb movements and interrupted breathing during sleep. Furthermore, the Board finds the Veteran and his wife's assertions credible regarding his sleeping problems, including snoring, apneic episodes and restless legs, and the Veteran's reported medical history in this case is found to hold great probative weight with respect to the question of continuity of symptamotology since service. The Board also notes that the Veteran is a physician's assistant, and thus, his opinions regarding medical matters carry weight beyond that of a mere lay person, and will be considered as such by the Board. The Veteran and his wife's observations in this instance outweigh the VA examiner's opinion that there was no evidence of treatment for sleep apnea within a year of separation form service, especially where the VA examiner did not discuss the statements made by the Veteran and his wife regarding the symptoms evident to them within a week of the Veteran's return from Afghanistan. Consequently, the Board finds the evidence of record supports service connection for the Veteran's sleep apnea. Therefore, service connection for sleep apnea is granted. ORDER Service connection for obstructive sleep apnea is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Thomas D. Jones Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs