Citation Nr: 1323356 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-29 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to July 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board notes that the Veteran initially requested a Travel Board hearing in his August 2009 Appeal Form 9. However, in September 2009, he withdrew his request for a hearing in writing. Therefore, no further action is necessary with regard to the Veteran's hearing request. See 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals an Informal Hearing Presentation that is not present in the paper claims file. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The medical opinion evidence of record shows that the Veteran is diagnosed with moderate obstructive sleep apnea that began during his military service. CONCLUSION OF LAW Sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants the Veteran's claim for service connection. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Service Connection The Veteran contends that he has sleep apnea that began in service. For the reasons explained below, the Board agrees and the claim is granted herein. Generally, service connection may be established for 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 requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Regarding Shedden element (1), current diagnoses, there is no dispute that the Veteran has a current diagnosis of moderate obstructive sleep apnea. See April 2007 private sleep study report. Regarding Shedden element (2), in-service incurrence, there is evidence suggesting in-service incurrence of sleep apnea. The Board acknowledges that service treatment records do not indicate that the Veteran sought treatment for sleep apnea in service, or that he was diagnosed with the same in service. However, he offered sworn testimony that he noticed difficulty sleeping and problems associated with sleep (including excessive snoring and waking up feeling disoriented and not rested) in service, in 1985 or 1986, while on active duty. See RO Hearing Transcript. He also offered sworn testimony that he self-medicated during service with Nyquil and Tylenol PM to help him get to sleep. He also reported that he sought treatment at a field clinic at Fort McClellan, and was advised to try the aforementioned over the counter medications. Id. He also offered sworn testimony that his wife in 1985-86 frequently complained about his excessive snoring and often ended up sleeping in a different room due to his snoring. Id. The Veteran also submitted buddy statements from fellow service members who remember his excessive snoring and who observed that he stopped breathing at times during his sleep. See letters from N.A. (former supervisor in service who assigned soldiers to keep an eye on the Veteran while he slept because he seemed to stop breathing intermittently; N.A. also noticed that the Veteran would constantly report for duty displaying signs of fatigue and disorientation) and R.L. (fellow service member from 1985-1996 who observed the Veteran pause in his breathing during his sleep, followed by spurts of loud snoring). The Veteran is competent to report the circumstances of his sleep experiences and feelings upon waking in service, as well as the complaints from his then-wife, as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Similarly, his fellow service members, N.A. and R.L., are competent to report their observations of the Veteran's snoring and irregular breathing while sleeping as these observations requires only personal knowledge as it comes to them through their senses. Id. The Board finds the Veteran's statements as well as the reports of N.A. and R.L. to be competent and credible in the absence of evidence to the contrary. Thus, the Board accepts that the sleep symptoms occurred in service and Shedden element (2), in-service incurrence, has been met. Regarding Shedden element (3), a relationship between the in-service occurrence and the current disorder, there is persuasive medical evidence that the Veteran's current sleep apnea is related to the sleep symptoms described above. Specifically, a VA physician, Dr. J.L., opined that the Veteran has a current diagnosis of sleep apnea that began while on active duty and has been ongoing ever since. See Dr. J.L.'s December 2009 letter. Dr. J.L.'s opinion was based, in part, on the reports submitted by the Veteran's fellow service members, as well as the Veteran's reports of symptoms during service, which as discussed above, the Board has found to be competent and credible. Moreover, Dr. J.L.'s opinion was based, in part, on the Veteran's reports of continuity of symptomatology since service. The Board has considered the competency and credibility of those statements. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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 testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran is competent to report continuous sleep symptoms since service as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran's competent reports of record regarding his observations of continuity of symptomatology are also credible. As discussed above, the Board finds that the statements of the Veteran and his fellow service members are both competent and credible with respect to sleep apnea symptoms in service. As the Board has determined that all of the lay statements concerning the in-service incurrence of symptoms as well as the continuity of the same symptoms since service are competent and credible, the VA physician's positive nexus opinion based on those statements is afforded a high probative value. There is no competent medical evidence to the contrary. Accordingly, the Board finds that service connection for sleep apnea is warranted. ORDER Service connection for sleep apnea, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs