Citation Nr: 1314979 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-28 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1992. He is a recipient of the Medal of Honor. His numerous other awards and decorations include the Silver Star, Bronze Star Medal, Combat Infantryman Badge, and the Purple Heart Medal with 2 Oak Leaf Clusters. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Roanoke, Virginia, regional office (RO) dated in November 2007, which denied service connection for sleep apnea/sleep disorder. In his substantive appeal, he stated that he was appealing the issue of service connection for sleep apnea. Subsequently, the file was transferred to the St. Petersburg, Florida, RO, where, in February 2003, the Veteran appeared at a hearing held before the undersigned (i.e., Travel Board hearing). FINDING OF FACT The Veteran has a current diagnosis of sleep apnea syndrome, which had its onset during active duty. CONCLUSION OF LAW Sleep apnea syndrome was incurred in active wartime service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In view of the favorable outcome of this appeal, compliance with the notification and assistance requirements of the Veterans Claims Assistance Act of 2000 (VCAA) need not be discussed. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Service connection may be established for chronic 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. To establish service connection, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records do not show sleep apnea in service, and after service, the medical evidence first shows a diagnosis of sleep apnea in November 2006, when he underwent an overnight polysomnogram. The overnight sleep study documented a mild obstructive sleep disorder syndrome. However, an officer, GSW, who shared a tent with the Veteran in Saudi Arabia in 1990 wrote, in June 2006, that sharing a tent with the Veteran was brutal, because of his snoring and frequent nocturnal awakenings. His tent-mates asked him to wait to bunk down until the rest of them were asleep; otherwise, his fits and starts would keep them awake. In December 2008, R. McConville, Jr., M.D., the Veteran's treating physician, wrote that the Veteran was diagnosed with mild obstructive sleep apnea with snoring and nocturnal as awakening on a sleep apnea study in November 2006. Prior to that, he experienced symptoms of sleep apnea for over 20 years. In referring to GSW's statement, he said that the severe snoring, frequent nocturnal awakenings and fits and starts he had while he was sleeping sounded like he was suffering from obstructive sleep apnea back in 1990 to 1992. He said that it was more likely than not that he was suffering from obstructive sleep apnea. A VA opinion was obtained in July 2009. The physician concluded that it would involve mere speculation on his part to determine whether the sleep apnea began while on active duty. He explained that all snoring and lay observed sleep apnea events were not indicative of sleep apnea, but that having some form of sleep study to indicate the length of apnea and changes in oxygen level in the blood were required. He also stated that "complicating the diagnosis" was that he related his sleep problems on a VA examination in July 2003 to PTSD. He was also taking sedating medication. He also stated that obstructive sleep apnea was difficult to diagnose by description sleep, snoring, and/or layman observed apnea. He said that "nasal obstruction increases the risk of obstructive sleep apnea 2-fold," then went on to note that the Veteran was frequently using antihistamines and decongestions which "imply nasal congestion during that deployment." The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Factors that are relevant to the probative value to be given to medical statements include the level of explanation or rationale contained in the opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (bare conclusion is not entitled to any weight); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (finding that the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). Here, the opinion in the Veteran's favor was based on the Veteran's history, and the statement from GSW, who shared a tent with him in service. At his Travel Board hearing, he said that he had also been told by his ex-wife that he would wake up during the night, but he did not seek treatment for it during service. He also testified that prior to the sleep study, he had complained of lack of sleep and feeling tired all the time. He noted that other doctors thought it was due to PTSD, but that Dr. McConville finally said he probably had sleep apnea. He said that others had described his sleep as severe snoring, with startled awakenings. The Board specifically finds that his testimony was credible. The VA opinion, first of all, said an opinion could not be reached without speculation. His opinion that an opinion could not be provided without resort to speculation, weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed.Cir.2009). The physician explained that not all snoring and lay observed sleep apnea events were indicative of sleep apnea, and that a sleep study was necessary to establish the diagnosis. However, the question is whether, based on the history, the in-service symptoms as described by the Veteran and other witnesses, at least as likely as not represented the onset of later diagnosed sleep apnea. The VA opinion did not address this question, but appears to have been employing a higher standard of proof than equipoise. He also stated that "complicating the diagnosis" was that he related his sleep problems on a VA examination in July 2003 to PTSD. The Board observes, however, that it was the examiner who related the sleep disturbances to PTSD, at that time and on the February 2002 VA examination. However, the Veteran was single at that time, living alone, and was socially isolated; therefore, he did not have any witnesses to his sleep patterns, including snoring. Finally, his statement that "nasal obstruction increases the risk of obstructive sleep apnea 2-fold" and that the Veteran's medications in service"impl[ied] nasal congestion during that deployment" appears to support, not refute, the claim for service connection. Moreover, lay assertions 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 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). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, at 1377. For these reasons, the Board finds that the opinion of Dr. McConville, based on the Veteran's credible history and lay statements, is more probative than the VA conclusion that an opinion would be speculative. In this regard, although he did not have access to the claims file, the Board finds that nothing in the claims file is inconsistent with Dr. McConville's opinion, including the absence of treatment during service for what the Veteran believed was simply very disruptive snoring. Therefore, the Board concludes that the evidence currently of record is sufficient to establish entitlement to service connection sleep apnea syndrome. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for sleep apnea syndrome is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs