Citation Nr: 1303274 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-40 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active military service from March 1985 to December 1989; and from January 1990 to October 2007. This case comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a June 2009 rating action of the Department of Veterans Affairs (VA), Regional Office (RO), located in Winston-Salem, North Carolina. Subsequent to the above action, the Veteran proffered testimony before the undersigned in Washington, DC, in February 2012. A transcript of the hearing has been included in the electronic claims folder for review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT The Veteran has current sleep apnea that had its onset in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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 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 where 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 (2012). The Veteran contends that he now has sleep apnea, that began before he retired from active service in the fall of 2007, that he has been diagnosed as actually suffering from said disorder, and that it is his opinion that his sleep apnea is due to or the result of his military service. A review of the service medical records fails to show any complaints involving sleep apnea. On a VA examination provided during service in July 2007, it was noted that there was no history of sleep apnea symptoms. In July 2008, the Veteran was seen at a service department facility and given a provisional diagnosis of other sleep disorders organic. Sleep apnea was first documented in a sleep study that was conducted for the service department at a private sleep center in September 2008. The diagnosis was severe obstructive sleep apnea. In March 2009, the Veteran submitted statements from a number of relatives and from a friend. The friend reported that she had dated the Veteran for 10 years and remained a friend. She had observed that he would awaken in the middle of the night and snored. She recalled checking to see if he was still breathing. In September 2009, a service department physician reported that when seen in July 2008, the Veteran reported a history of disturbed sleep for a few years, and expressed concern about sleep apnea. The doctor noted that this diagnosis had been confirmed in the September 2008 sleep study. In October 2009, a physician from a sleep center noted that the Veteran had been advised to undergo a sleep study in service and that he had experienced pertinent symptoms for many years. The physician concluded that although sleep apnea was not "officially diagnosed" until September 2008, it likely would have been diagnosed sooner, had a sleep study been performed. At his hearing the Veteran testified that his mother had also observed his disturbed sleep during visits home between 1990 and 2001. He again reported that pertinent symptoms had begun during service. This record clearly demonstrates a current disability, inasmuch as the September 2008 sleep study documented severe sleep apnea. The reports from the Veteran, his mother and a friend have provided competent and credible evidence of symptoms in service that ultimately lead to the diagnosis of sleep apnea. The August 2007 VA examination provides some evidence against the reports of in-service symptoms. It is not clear; however, how extensively the examiner questioned the Veteran about sleep apnea symptoms; hence it is not of sufficient probative weight to render the reports of in-service symptomatology incredible. The weight of the evidence is to the effect that symptoms later diagnosed as manifestations of sleep apnea were present in service. Accordingly, the requirement for an in-service disease or injury is met. Finally, a private doctor has provided an opinion that suggests sleep apnea began during active service; and the Veteran and other lay persons have reported a continuity of symptomatology extending from the time of active duty to initial diagnosis. It is also significant that sleep apnea was confirmed less than a year after the Veteran's discharge from service. This evidence weighs in favor of a finding that there is a nexus between the current sleep apnea and the symptoms that began in service. The elements for a grant of service connection have been established; therefore, service connection for sleep apnea is granted. ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs