Citation Nr: 1318582 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-44 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from April 1980 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In February 2009, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. On a November 2009 substantive appeal, the Veteran indicated that he wanted a Board hearing at the RO. However, in April 2010 correspondence, he indicated that he wanted a hearing before a DRO instead of a Board hearing. In June 2010, the Veteran was afforded a hearing before a DRO. Thus, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's obstructive sleep apnea had its onset during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, obstructive sleep apnea had its onset during active service. 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 Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also 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) (2012). In this case, the disability at issue is not a chronic disease listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) (2012) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran contends that he developed obstructive sleep apnea during active service. He acknowledges that he was not diagnosed with sleep apnea until after discharge, but asserts that he had symptoms during service. The Veteran's service medical records do not shows any symptoms, findings, or diagnoses of obstructive sleep apnea. Although they show complaints of fatigue and malaise, those complaints appear to have been associated with gastroenteritis and upper respiratory infections. In a May 2007 letter, the Veteran's wife stated that he had a sleep disorder since the early 1990s when he was still in service. She noted symptoms of snoring and gasping during sleep. She commented that she thought that the problems were due to the pressures of the Navy, but they continued after his retirement. She also stated that the Veteran often appeared tired even after eight hours of sleep. In an August 2007 letter, a fellow serviceman stated that he had observed the Veteran snoring and gasping during sleep. The fellow serviceman also stated that the Veteran had appeared tired and sluggish. A November 2006 sleep study diagnosed the Veteran with obstructive sleep apnea. In a March 2008 letter, Dr. S. noted lay evidence noting the Veteran's loud snoring during service. Dr. S. stated that obstructive sleep apnea is usually not an acute condition but tends to be present for many years. Dr. S. opined that the Veteran had obstructive sleep apnea prior to his retirement from service in 2004. During the February 2009 DRO hearing, the Veteran and his wife testified that he had symptoms of obstructive sleep apnea during service and that they began in the early 1990s. During the June 2010 DRO hearing, the Veteran again testified that he had symptoms of obstructive sleep apnea during service. In a June 2010 letter, Dr. K. noted that the Veteran's service medical records showed treatment for high blood pressure, diabetes mellitus, sexual dysfunction, arrhythmia or mild stroke, and malaise or general daytime fatigue. Dr. K. further noted that the Veteran had been service-connected for the first three disabilities. Dr. K. stated that the above are signs and symptoms of obstructive sleep apnea. Dr. K. opined that, as obstructive sleep apnea is not an acute illness, the Veteran had been suffering from obstructive sleep apnea, though unaware of it, even before retiring from active duty. During an April 2011 VA examination, the Veteran stated that he sought treatment for, and was diagnosed with, obstructive sleep apnea in November 2006 due to his wife's complaints of episodic apnea. The examiner noted the statements from the Veteran's wife and fellow shipmate and the November 2006 sleep study report. The examiner noted that the Veteran's service treatment records did not document any complaints associated with sleep disturbance. The examiner then stated that the issue of whether the Veteran had obstructive sleep apnea during active service could not be resolved without resorting to speculation. In a January 2013 follow-up letter, Dr. K. cited to studies indicating a link between obstructive sleep apnea and diabetes mellitus and high blood pressure, and also daytime fatigue. In a January 2013 letter, Dr. H. opined that the Veteran has had obstructive sleep apnea since he was in the Navy. Dr. H. noted that the Veteran was diagnosed with obstructive sleep apnea two and one half years after separation from service but observed that the course of development for obstructive sleep apnea usually takes an average of 10 to 15 years. The Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran's obstructive sleep apnea had its onset during active service. Although he was not diagnosed with obstructive sleep apnea during service, post-service lay statements indicate that he had symptoms of the disorder during service. Similarly, although a VA examiner has indicated that the date of onset of the Veteran's obstructive sleep apnea cannot be determined without resorting to speculation, three private physicians have opined that the disorder had its onset during active service. Resolving reasonable doubt in the Veteran's favor, the Board concludes that his obstructive sleep apnea had its onset during active service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for obstructive sleep apnea is warranted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs