Citation Nr: 1318927	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  12-07 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Veteran, M.H.


ATTORNEY FOR THE BOARD

William Alan Nelson II, Associate Counsel

INTRODUCTION

The Veteran had active service from February to May 1997 and from May 2007 to May 2008. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

In April 2013, the Veteran presented testimony relevant to this appeal before the undersigned at a Board hearing held at the local RO.  A transcript of the hearing is of record.  Additional evidence was received at the hearing, for which a waiver of initial RO consideration was provided.  38 C.F.R. § 20.1304 (2012).  

The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

When viewed in the light most favorable to the Veteran, the evidence of record shows that his current diagnosed obstructive sleep apnea had its onset during his second period of active duty service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for sleep apnea have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 

REASONS AND BASES FOR FINDING AND CONCLUSION

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).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  The Board finds that sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.309(b) does not apply to the claim for sleep apnea.  Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013).  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).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996).  Most recently, the Federal Circuit has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service.  See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury.  To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).  

The Veteran has claimed entitlement to service connection for sleep apnea, which he essentially contends developed secondary to his service-connected PTSD.  While this claim appears to be for secondary service connection, the Board will also consider whether sleep apnea is directly related to service.

The Veteran submitted a statement from a fellow service member who wrote that the Veteran had trouble sleeping during service.  The Veteran has also credibly reported that he first experienced symptoms of snoring and trouble sleeping during service, which the Board observes are known characteristics of sleep apnea.  See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts).  

Shortly after returning from active duty service, the Veteran complained of sleep impairment and problems with obtaining restful sleep.  These symptoms were associated with insomnia disability, and he was prescribed medication to help him sleep better.  In March 2009, within one year of his separation from service, the Veteran was diagnosed with insomnia and rule-out sleep apnea; the VA examiner suggested a sleep study be completed.  In April 2010, the Veteran was diagnosed with severe obstructed sleep apnea based on the findings from a clinical sleep study.  He was subsequently prescribed a C-PAP machine to treat his sleep apnea.  Because the record reflects that the Veteran has been diagnosed with obstructive sleep apnea, and the first element of Shedden is satisfied.

During the April 2013 Board personal hearing, the Veteran's fiancé, M.H., testified that the Veteran snored loudly and would stop breathing at night since his return from active duty service.  The Veteran also testified that his prescribed sleep medication would provide him with some relief in getting to sleep and staying asleep, but he continued to have restless and interrupted sleep until he was treated for obstructive sleep apnea with a C-PAP machine.  

The Board acknowledges that the record lacks a medical nexus opinion that addresses a possible link between the Veteran's current diagnosed obstructive sleep apnea and his second period of service.  No medical opinion has been sought for the purpose of obtaining such medical opinion.  Instead, a medical opinion was only sought in July 2010 that addressed the question of service connection on a secondary basis. 

To this extent, the Board notes that the Veteran is competent and credible to report on what he sees and feels, such as the onset and continuity of snoring and difficulty obtaining restful sleep since his period of service.  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2).  The Board has no reason to doubt the credibility of the Veteran's statements, especially given the diagnosis of insomnia and rule-out sleep apnea within a year of his separation from service.  See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility can be affected by consistency with other evidence of record); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes).  

The Board also places great weight on the fact that the first clinical evidence of insomnia and obstructive sleep apnea were demonstrative within one year from the Veteran's separation from service.  Moreover, the Board notes that the Veteran was provided home sleeping tests shortly after returning from service, which were inconclusive, and that even though the VA examiner requested a clinical sleep study be completed in March 2009, the sleep study was not provided until April 2010.  It is highly conceivable that the Veteran would have been diagnosed with obstructive sleep apnea prior to April 2010, if he had been afforded a clinical sleep study earlier.  It is also highly likely that the Veteran was having this problem prior to March 2009. 

In this case, the Board has placed great weight on the Veteran's and his fiancé's lay assertions that he has experienced trouble sleeping and symptoms of snoring continuously since his active duty service.  The statements in this regard are both competent and credible.  Indeed the medical evidence of record, including the post-service diagnoses of insomnia and rule-out sleep apnea within one year of the Veteran's separation from service, supports the Veteran's assertions of in-service onset and continuity of sleeping problems and snoring since service.  The Board again resolves all doubt in favor of the Veteran and finds that the Shedden elements of (2) in-service disease or injury, and (3) nexus or relationship, are satisfied as to this claim. 

Considering the totality of the evidence, the credible reports of continuous symptomatology in service and since service, the diagnostic evidence within one year of service separation, and the nature of the disability, the Board finds that the Veteran's current obstructive sleep apnea likely had its onset during his period of service.  Affording the Veteran the benefit of the doubt, the Board determines that the criteria for service connection for obstructive sleep apnea are met.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

In view of the favorable disposition above, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claim are rendered moot.    

ORDER

Entitlement to service connection for sleep apnea is granted. 


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs