Citation Nr: 1322256 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-26 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decisions of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran application to reopen a claim of service connection for sleep apnea. In October 2012, the Board reopened the claim for sleep apnea, increased the evaluation for migraine headaches to 50 percent disabling and granted service connection for posttraumatic stress disorder (PTSD), as a component of the Veteran's service connected depressive disorder. The reopened claim for sleep apnea was remanded for further development. In the October 2012 decision, the Board noted that the record raised a claim of service connection for a brain lesion, possibly as secondary to the Veteran's service connected migraines. The issue is again referred to the AOJ for appropriate action. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 Affording the Veteran the benefit of the doubt, obstructive sleep apnea has been shown to have had its onset in service. CONCLUSION OF LAW The criteria for an award of service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, however, as the Board has decided that entitlement to service connection for obstructive sleep apnea is warranted, no further discussion of the Veterans Claims Assistance Act of 2000 and the implementing regulations is required at this point. II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for obstructive sleep apnea. In this regard, claims file reflects multiple in-service complaints of sleeping difficulties, including the Veteran's Reports of Medical History dated January 1995 and February 2001. The Veteran has also been diagnosed and treated for sleep apnea after discharge. As the similarity between the in-service complaints and the current diagnosis was sufficient to trigger VA's duty to provide an examination, the matter was remanded in October 2012 for a VA examination in connection with the claim. In January 2013, the Veteran was afforded a VA examination in connection with the claim. He was diagnosed with obstructive sleep apnea. The examiner noted that the claims file had not arrived at the time of the examination, but that the Veteran had brought copies of his medical records and that these had been reviewed. After examination, the examiner opined that the diagnosed sleep apnea was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that, while it was not possible to state with certainty that the Veteran had sleep apnea in service, the history of loud snoring and family reports of periods of not breathing while asleep would indicate that the Veteran at least as likely as not had symptoms of obstructive sleep apnea while serving in the military. The examiner noted that during the Veteran's time in service, the diagnosis of sleep apnea was not well known and was therefore not easily diagnosed. After the January 2013 examination report, the Veteran's claims file was reviewed by the examiner and an addendum report, also dated in January 2013, was added. The examiner noted that the Veteran complained of trouble sleeping. In his statements regarding his sleep problems, the Veteran indicated that the trouble sleeping was caused by frequent cold and body aches and neck and back pains. In another note, the Veteran mentioned sleep problems related to anxiety. There was no indication of sleep trouble related to snoring or apneic episodes. The examiner then concluded that, based on a review of the Veteran's service treatment records, that the current sleep apnea was less likely than not related to the complaints of trouble sleeping in the military. The examiner acknowledged that this opinion was not in agreement with the previous opinion that had been given without the opportunity to review the service treatment records. After the examination and addendum report, the Veteran submitted multiple lay statements from fellow servicemen who served with him, sleeping in the same tent, indicating that the Veteran did indeed have issues with snoring loudly in service. In fact, he snored so loudly that he would wake not only his companions but himself. These statements also indicated that at times it appeared that the Veteran would stop breathing. Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that entitlement to service connection for obstructive sleep apnea is warranted in this case. Here, the Veteran had complaints and symptoms of sleep disturbance in service. This was attested to by the Veteran and fellow service members who observed these symptoms in service. In addition, the January 2013 examiner explained that, while it was not possible to state with certainty that the Veteran had sleep apnea in service, the history of loud snoring and family reports of periods of not breathing while asleep would indicate that the Veteran at least as likely as not had symptoms of obstructive sleep apnea while serving in the military. While the examiner later withdrew this opinion in light of further review of the medical records (indicating that the complaints of sleep disturbance may have been caused by frequent colds and body aches, etc) this opinion was afforded prior to the submission of additional evidence indicating symptoms such as loud snoring and breathing cessation in service unrelated to other disease processes. As such, the Board finds the examiner's first opinion to be most persuasive based on the totality of the evidence in this case. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the first opinion of the January 2013 VA examiner in this case to be most persuasive, as more fully explained above. In summary, the Board concludes that the preponderance of the evidence is in favor of the Veteran's claim and, as such the claim is allowed. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for obstructive sleep apnea is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs