Citation Nr: 1306328	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  10-40 575A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Coyle, Counsel


INTRODUCTION

The Veteran served on active duty from September 1985 to December 1985, from December 1990 to May 1991, and from March 2005 to June 2006, with additional service in the National Guard.   

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Hearings on this matter were held before a Decision Review Officer on October 28, 2009, and before the undersigned Veterans Law Judge sitting at the RO on March 26, 2012.  Copies of the hearing transcripts have been associated with the file.


FINDING OF FACT

The Veteran has sleep apnea that is as likely as not related to his active duty.


CONCLUSION OF LAW

The criteria for service connection for sleep apnea are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty 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.   
Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).

The Veteran asserts that symptoms of sleep apnea first began during his period of active service from March 2005 to June 2006.  The Veteran's wife stated that she observed the Veteran snoring loudly and acting restless during sleep while home on leave in 2005.  The Veteran was also falling asleep during late-night conversations.  Post-service, the Veteran's daytime fatigue became so severe that he could no longer drive a truck for a living.  At that point, according to the Veteran, he sought treatment from VA, and was diagnosed with obstructive sleep apnea following a November 2008 sleep study.  

The Veteran's service treatment records (STRs) do not show a diagnosis of sleep apnea or any other sleep disorder.  In fact, the Veteran denied excessive fatigue. He also did not report any unusual sleep symptoms during his medical evaluation board proceedings in April 2006.

The Veteran is competent to report symptoms of daytime fatigue, and his wife is similarly competent to attest to symptoms of excessive snoring, restless sleep, and fatigue.  Layno v. Brown, 6 Vet. App. 465 (1994).  A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  

Despite the negative STRs, the reports of the in-service onset of symptoms and of a continuity of symptomatology since service are credible.  It is certainly reasonable to think that the Veteran would not have reported snoring during service.  He has also indicated that his daytime fatigue symptoms did not become prevalent until after he was discharged.  The Veteran and his wife have stated that they were unaware that his initial symptoms were indicative of sleep apnea, which the Board finds credible.    

The evidence supports a finding that sleep apnea had its onset during the Veteran's period of active service from 2005 to 2006, and that a continuity of symptomatology has existed since service.  Affording the Veteran the benefit-of-the-doubt, it is at least as likely as not that he has sleep apnea that was incurred in service.  Service connection for sleep apnea is warranted.  See 38 U.S.C.A §5107 (West 2002).  


ORDER

Entitlement to service connection for sleep apnea is granted.




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs