Citation Nr: 1301764 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-39 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for sleep apnea/hypopnea. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from July 2006 to September 2006 and from February 2007 to November 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue has been recharacterized to comport with the evidence of record. FINDINGS OF FACT 1. During service, the Veteran reported experiencing sleep disturbances. 2. The Veteran credibly reports that his sleep disturbance symptoms began during service and have remained consistent since service. 3. A sleep study conducted approximately seven months after the Veteran's discharge from service revealed severe obstructive sleep apnea/hypopnea. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea/hypopnea have been met. 38 U.S.C.A. §§ 1101, 1110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection The Veteran contends that he developed his currently-diagnosed sleep disorder during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007 The Veteran states that, as a result of his now service-connected lumbosacral strain, he was placed on a physical profile, and as a result, gained weight during service. He posits that his in-service weight gain triggered the development of a contemporaneous sleep disorder. The Veteran injured his back in June 2007 and was placed on a physical profile in August 2007. In April and May of 2008, the Veteran reported that he was not sleeping well, and in July 2008, he reported that he had gained 40 pounds since being placed on his physical profile. The Veteran states that he requested a sleep study during service but was advised that a sleep study could not be scheduled prior to his discharge from service. In April and May 2009, the Veteran reported experiencing poor sleep to his treating VA physician. The Veteran's spouse accompanied him to these medical appointments and reported that the Veteran frequently ceased breathing while sleeping. A June 2009 VA sleep study revealed severe obstructive sleep apnea/hypopnea. The Veteran is competent to report experiencing the onset, symptoms, and severity of his sleep disturbance during and since service, as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran's statements are credible, as they are supported by his medical treatment records and are consistent with the medical evidence of record. The Veteran's documented complaints of experiencing sleep disturbances during service corroborate his report of the onset of his sleep disorder during service. The Veteran's obstructive sleep apnea/hypopnea was characterized as severe when it was diagnosed approximately seven months after service. This characterization lends support to a conclusion that the Veteran did not develop his sleep disorder shortly before its diagnosis. To the extent the Veteran's sleep disorder has been related to his obesity, his service treatment records reflect findings of and counseling for his obesity. A comparison between the Veteran's body weight during and since service does not reflect that the Veteran experienced a significant weight gain in the interval between his discharge from service and his sleep disorder diagnosis. The Veteran's body weight was recorded as 251 pounds in July 2008, near the end of his period of service, and as 262 pounds at the time of his June 2009 sleep study. Given the Veteran's credible reports of the onset and continuity of his sleep disorder symptoms, which are consistent with the medical evidence, service connection for obstructive sleep apnea/hypopnea is warranted. See 38 C.F.R. § 3.303(b), (d). ORDER Service connection for obstructive sleep apnea/hypopnea is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs