Citation Nr: 1309948 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-24 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from March 1981 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2013; a transcript of the hearing is associated with the claims file. As a procedural matter, the Board notes that the Veteran submitted additional evidence in February 2013, after the RO last considered the claim; however, he waived his right to have the evidence considered by the RO. FINDING OF FACT Obstructive sleep apnea originated in active service. CONCLUSION OF LAW Obstructive sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. 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. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 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). Generally, in order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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 (2012); 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. Factual Background The Veteran contends that his current obstructive sleep apnea had its onset during active service. In this regard, during a February 2013 hearing before the Board, he testified that towards the end of his service he snored a lot while sleeping. He further asserted that he often felt tired or experienced headaches during the day. He stated that he believed that such symptoms were the result of working long hours. In addition, he asserted that while in service, he was unaware that his symptoms could be due to a sleeping disorder. He explained that subsequent to service, he read Internet articles and saw television commercials regarding sleep apnea, which noted symptoms of headaches and exhaustion, and thereafter sought treatment for his symptoms. In this regard, the Veteran's September 1980 induction physical examination report is negative for complaints, treatment, or a diagnosis of a sleeping disorder. Service treatment records include an August 2006 record which notes a complaint of shortness of breath during exercise. The March 2006 separation physical examination report shows the Veteran reported frequent or severe headaches. The report of medical examination is negative for a diagnosis of a sleep disorder. The post-service medical evidence includes the report of an April 2007 VA general examination, during which, the Veteran reported that he experienced headaches and chronic shortness of breath with exercise. The Veteran was not evaluated for a sleep disorder; thus, a diagnosis was not rendered. A November 2008 letter with the results of a sleep study from the VA Medical Center in Gainesville, Florida notes a diagnosis of moderate to severe obstructive sleep apnea based upon the frequency of disordered breathing events and oxygen levels during the sleep study. VA outpatient treatment records dated in August 2009 note the Veteran uses a continuous positive airway pressure (CPAP) machine to treat his obstructive sleep apnea. At the time of treatment, the Veteran reported that he experienced headaches and pulmonary symptoms. He further reported that he was diagnosed with obstructive sleep apnea subsequent to discharge from service. He also reported that prior to such diagnosis, and approximately eight to ten years before separation from service, he experienced symptoms of heavy snoring during the evening while sleeping, as well as exhaustion during the day despite getting eight hours of sleep per night. He further reported that during service, his wife noticed his symptoms of gasping for air at night, as well as his heavy snoring, and as a result, often slept in a separate room because she could not sleep due to his snoring. In an August 26, 2009, record, a VA examiner opined that while the Veteran was recently diagnosed with obstructive sleep apnea, it was clear that he had symptoms of such disorder for many years prior to his retirement. In August 2009, the Veteran's spouse submitted a letter indicating that she had been married to the Veteran for 27 years. She reported that since she and the Veteran got married (in 1982), she noticed that he snored at night. She reported that when the Veteran snored loudly, she slept in a separate room. She further reported that, although the Veteran went to bed early, he always felt tired. She concluded that the Veteran's recently issued CPAP machine enabled him to be less fatigued during the day and helped him to sleep better in the evening. In an August 2009 letter, J.K., a fellow serviceman, indicated that he witnessed the Veteran's symptoms of heavy snoring during active service in Japan, in December 2003. In August 2009, R.S., submitted a letter indicating that he served with the Veteran in Italy, from 1999 to 2002. R.S. reported that he recalled talking to the Veteran during such time about the Veteran's fatigue, headaches, and difficulty staying awake at work. In an August 2009 letter, J.J., a co-worker of the Veteran, indicated that he had worked with the Veteran since July 2007, when the Veteran started working as a contractor at an airbase in Jacksonville, Florida. J.J. reported that he noticed the Veteran taking naps at lunch time, during which he snored loudly and gasped for air. He further reported that since the Veteran's diagnosis of obstructive sleep apnea, the Veteran has come to work well-rested, and no longer takes naps during lunch. VA outpatient treatment records dated from September 2009 through January 2013 document diagnoses of obstructive sleep apnea. During a February 2013 hearing before the undersigned, the Veteran's spouse testified that since their marriage, she has noticed the Veteran snored often and gasped for air while he slept. She further assented that such symptoms progressively worsened throughout their time together. Analysis The Board finds that the evidence of record supports a finding of service connection for obstructive sleep apnea. Medical records show that obstructive sleep apnea was diagnosed in November 2008. The Veteran's treating VA practitioner noted in August 2009, that based on the Veteran's history, it was clear that he had obstructive sleep apnea for many years prior to his retirement. The Board finds the Veteran's statements regarding the onset of breathing and sleeping difficulty during service and since separation, are competent and credible evidence as these are symptoms that are observable. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's account as to his symptomatology has been consistent and the medical evidence of record supports his account, as a service treatment record notes his complaint of shortness of breath, and his separation physical examination indicates a complaint of frequent or severe headaches. The Veteran retired from active service in September 2006, and was diagnosed with obstructive sleep apnea shortly thereafter, in November 2008. Moreover, the testimony of the Veteran's spouse corroborates the Veteran's statements of the presence of pertinent symptoms during service, as she asserted that the Veteran had difficulty breathing and sleeping, which progressively worsened. Similarly, the statements of J.K. and R.S. further corroborate the Veteran's statements of the presence of pertinent symptoms, as both recalled the Veteran's symptoms of snoring at night and exhaustion during the day. Likewise, J.J.'s statement also corroborates the Veteran's statements of continuity of symptomatology post active duty service, as he noticed that prior to the diagnosis of obstructive sleep apnea, the Veteran took naps at lunch and snored loudly and gasped for air. Accordingly, the Board finds that the evidence is at least in equipoise with regard to this claim, and therefore, with application of the benefit of the doubt doctrine, service connection for obstructive sleep apnea is warranted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs