Citation Nr: 1314640 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-40 510A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Board notes that the RO was apparently unsuccessful in its attempts to verify the Veteran's periods of service and it has reported different periods of service on the various rating decisions. Moreover, the periods of service claimed by the Veteran on his claim form are different than those reported by the RO. Based on a review of the Veteran's service treatment records and personnel records, including Forms DD-214, it would appear that the Veteran served in the U.S. Navy from September 1992 to February 1996. The Board acknowledges that the Veteran listed the date of separation as February 1995; however, the service treatment records contain a U.S. Navy separation physical dated January 29, 1996. For this period, the Board accepts the dates listed on the DD-214 of September 1992 to February 1996. There is also a second period of service in the U.S. Coast Guard. The Veteran has listed his date of entry as September 1998. He testified that it was the middle part of 1998; however, his testimony does not reflect a high degree of certainty as to the date of entry. The Form DD-214 for this period shows the date of entry as March 1994, which overlaps with the separation date from his period of service in the Navy and is far earlier than the Veteran contends he entered active duty in the Coast Guard. Coast Guard treatment records reflect treatment as early as September 1997 and contain an enlistment examination dated July 29, 1997. A pre-training physical was administered on August 20, 1997. A September 23, 1997 treatment report reflects that the Veteran was in his 6th week of training. Immunization records date to August 1997, and a baseline entry in the dental records was in August 1997. Accordingly, the Board finds that the Veteran's second period of service was from approximately August 1997 to August 2009. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the RO in Huntington, West Virginia. In January 2013, the Veteran and his wife presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, seated in Washington, D.C. A transcript of the hearing is associated with the claims file. The Board notes that, while the Veteran initiated appeals as to the denial of service connection for lumbosacral strain, and the initial ratings assigned for aortic insufficiency and hypertension, during the pendency of the appeal, in a September 2010 rating decision, the RO granted service connection for lumbosacral strain. This is a full grant of the benefit sought and resolves the appeal as to that issue. In the same decision, the RO also granted an increased 30 percent rating for aortic insufficiency. While this action did not resolve the appeals as to the rating issues, on the VA Form 9, the Veteran acknowledged that he had read the Statement of the Case and only wished to pursue the appeal of the denial of service connection for sleep apnea. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The evidence for and against whether sleep apnea is related to the Veteran's service is at least in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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 disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). Analysis of Service Connection Claim The Veteran is seeking service connection for sleep apnea. The Veteran asserts that sleep apnea began during his service in the U.S. Coast Guard with the same symptoms he currently experiences. The Veteran's wife testified that they had been married for almost 15 years, and that she has always known him to snore and to occasionally gasp during his sleep. The Veteran testified that he first noticed problems with his sleep apnea in the early 2000s, during his service in the Coast Guard. After a review of all of the evidence, the Board finds that service connection for sleep apnea is warranted. In so finding, the Board finds particularly persuasive the fact that the Veteran filed his claim for service connection in July 2009, just one month after service separation; and, he participated in a sleep study in January 2010 at which time a diagnosis of moderate obstructive sleep apnea syndrome was rendered. Thus, the Veteran was found to have sleep apnea just six months after service separation. The Board acknowledges that there is no medical opinion that purports to relate sleep apnea to service. In fact, there is a VA opinion in March 2010 that is against such a relationship. The examiner recounted the Veteran's history of beginning excessive snoring about 8 years prior. The Veteran reported excessive daytime sleepiness on some days and recalled waking in the middle of the night with the feeling that he could not breathe. The examiner diagnosed sleep apnea based on the recent sleep study results. The examiner acknowledged a service treatment record in March 1999 where the Veteran reported feeling sleepy in the mornings. The examiner opined that it was less likely than not that the Veteran's current sleep apnea was caused by or a result of sleep problems noted once in the service treatment records in 1999. The rationale was that there is not sufficient information in the service treatment records to comment on the likelihood that the Veteran had symptoms of sleep apnea in the service. According to the examiner, it is not likely that one episode of sleep problems in 1999 represented sleep apnea at the time. The Veteran was able to perform 15 years of service and sleep apnea was only recently diagnosed. The examiner also noted that the Veteran has been overweight since 1991 and efforts were made for him to lose weight throughout this military career. According to the examiner, weight gain is related to sleep apnea. The Board notes that the March 2010 VA examiner appears to have limited her opinion to whether there is a relationship between the current sleep apnea and a specific incident of treatment in 1999. The examiner acknowledged but did not discuss the significance of the fact that the Veteran reported ongoing sleep difficulties over the past 8 years, the fact that he had filed a claim for service connection for sleep apnea one month after service separation, or the fact that he had been diagnosed with sleep apnea six months after service separation. The Board notes that it is not necessary to relate sleep apnea to a specific treatment record or diagnosis in service nor is it necessary that the Veteran even sought treatment in service. The Veteran has provided competent testimony, as has his wife, that his symptoms began in the early 2000s and continued throughout the rest of his service. The examiner made no comment regarding whether she found some reason to discount the Veteran's assertions as to ongoing symptoms during service; however, her opinion appears to discount these assertions. The Board reiterates that there is no requirement that sleep apnea must have been diagnosed in service or even that the Veteran must have sought treatment for sleep apnea during service. There need only be competent evidence of symptomatology in service that is related by competent evidence to a current disability. Here, there is no reason to doubt the Veteran's account of his symptoms in service. His assertions have remained consistent throughout the appeal. Moreover, the short time between service separation and the filing of his claim and the diagnosis of sleep apnea is supportive of his assertions and is persuasive evidence that the Veteran had the same disability in service as was diagnosed shortly after service. Regarding the examiner's comments on the Veteran's weight, the Board notes that the fact that the onset of sleep apnea might by attributable to the Veteran's weight does not suggest that sleep apnea did not have its onset in service. The examiner noted that the Veteran has been overweight since 1991, prior to service; however, she did not identify any evidence that sleep apnea began prior to service. The Veteran's testimony is that his symptoms of sleep apnea began during his service in the Coast Guard. The Board finds this assertion to be credible. In this case, while there is a medical opinion that is nominally against a nexus between the Veteran's sleep apnea and service, the Board finds that the evidence weighing in favor of the claim is in relative equipoise with the evidence weighing against the claim. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for sleep apnea is warranted. Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the claim, it is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 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"); VAOPGCPREC 5-2004 (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). ORDER Service connection for sleep apnea is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs