Citation Nr: 1325147 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-05 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to May 1982 and from February 1983 to February 2002. His claims file has been rebuilt. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The RO in Atlanta, Georgia has jurisdiction in this case. FINDING OF FACT The probative lay and medical evidence relates the Veteran's obstructive sleep apnea to his military service. CONCLUSION OF LAW The criteria for the establishment of service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for obstructive sleep apnea. This award represents a complete grant of the benefit 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. Background A February 2003 private nocturnal polysomnography (sleep study) revealed severe obstructive sleep apnea. The Veteran submitted a January 2004 statement from R.V.E., M.D., a private physician, Board-Certified in Internal Medicine. Dr. R.V.E. stated that "[the Veteran] has been followed by me for the past three years. He has longstanding sleep apnea and is treated with a nasal CPAP on a daily basis." In a February 2007 statement, C.M.P., LTC, MC, SFS, the Chief of Department of Medicine at Martin Army Community Hospital in Fort Benning, indicated that he reviewed the Veteran's outpatient records at the Veteran's request. He noted that those records revealed that a physician assigned to Lawrence Joel Army Health Clinic prescribed Benadryl to the Veteran to help with his sleep difficulties based on his history. In a June 2007 statement, the Veteran's spouse stated that in the early to mid-1990, the Veteran was diagnosed with hypertension by military doctors, and at that time, she noticed that the Veteran's sleep patterns had changed. He began to snore at night and would at times stop breathing. She also noticed that he complained of being very tired during the day. She stated that after retirement, his snoring became worse. In a July 2007 statement, the Veteran stated that in approximately 1995, his health began to deteriorate. He was given anti-hypertensive medication and prescribed medication for sleep difficulty as he had constant daytime fatigue as well as snoring at night. He stated that he continued to have the same difficulty after service retirement. According to a July 2008 memorandum, R.W.G., Command Chief Warrant Officer at Fort Snelling, indicated that he had worked with the Veteran for many years and did physical training together. R.W.G. is also diagnosed with sleep apnea and noticed that the Veteran experienced symptoms similar to his own. R.W.G. encouraged the Veteran to undergo a sleep study because he complained of always being tired. He noted that the Veteran would frequently fall asleep at his computer terminal and during meetings. R.W.G. also observed that the Veteran had gained weight between the mid-1990's and 2000. In September 2008, a Family Nurse Practitioner with Fusion Sleep Center for Sleep Medicine provided a statement on behalf of the Veteran. She stated that although there is no objective tool to determine the exact onset of obstructive sleep apnea, there is a strong correlation to certain signs and symptoms, such as snoring, pauses in breathing, insomnia, daytime hypersomnolence, an uncomfortable urge to move legs and arms, morning headaches, fatigue, and decreased energy levels. She also stated that rising blood pressure, blood sugars, weight gain, as well as the inability to sleep or stay asleep, can be seen with obstructive sleep apnea. It was also noted that the diagnosis is very common in the fourth decade of life for men, but it is not uncommon to have had the signs and symptoms of this disease for some time before diagnosis. In a February 2009 letter, A.D.T., M.D. wrote a letter on behalf of the Veteran upon his request in which she "vigorously" supports the Veteran's claim for sleep apnea. Dr. A.D.T. stated that based on a review of the medical records, outside lay observations, and the relevant medical literature, she has absolutely no doubt that the Veteran's obstructive sleep apnea existed for several years prior to his retirement in March 2002. First, she explained that obstructive sleep apnea occurs in approximately 2-4 percent of the general population and that risk factors include hypertension and hypercholesterolemia. Second, she indicated that the symptoms of obstructive sleep apnea, such as daytime sleepiness, fatigue, headaches, etc., are rather vague. Also, she observed that the persons who provided lay statements gave classic descriptions of someone with undiagnosed/untreated obstructive sleep apnea. Third, Dr. A.D.T. noted that she served as Chief of Family Practice at the U.S. Army Health Clinic in Fort McPherson, Georgia from 1992-1997, and is well aware that physicians who treat soldiers during service might not have had the specialized training necessary to detect the symptoms and consider a diagnosis of obstructive sleep apnea, because, as mentioned, they are so vague. Lastly, Dr. A.D.T. has a personal interest in obstructive sleep apnea because a close family member has such condition. Dr. A.D.T. submitted an article titled, "Obstructive Sleep Apnea," which was published by the American Family Physician, which supports her contentions regarding the onset and risk factors of the disease. III. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In regard to element (1), a current disability, the February 2003 sleep study confirms a diagnosis of severe obstructive sleep apnea. In regard to element (2), in-service incurrence, the Veteran, his spouse, and fellow service members are competent to report experiencing the observable symptoms of the Veteran's sleep disturbance (such as snoring or daytime sleepiness) during service, as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Board also finds these statements credible as they are There is also no reason to find these lay statements not credible. The element of in-service incurrence has therefore been satisfied. The evidence relating to element (3), a causal relationship, consists of Dr. R.V.E.'s January 2004 statement, the September 2008 letter from Fusion Sleep Center, and Dr. A.D.T.'s February 2009 letter. These medical providers determined that the Veteran's current sleep apnea had its onset during his military service. There is no contrary medical opinion of record. The Veteran's obstructive sleep apnea was already characterized as severe when he underwent a sleep study on February 19, 2003, just within a year of his service retirement. This characterization supports the conclusion that the Veteran's sleep apnea did not begin in February 2003, but rather, began years before and was undiagnosed. The competent and credible lay evidence indicates that the Veteran exhibited observable sleep apnea symptoms in the early to mid-1990's, which was clearly during his active service. The Board notes further that the Veteran is also diagnosed with hypertension and hypercholesterolemia, and the medical evidence and literature indicates that those conditions are risk factors for obstructive sleep apnea. In fact, service connection is currently in effect for hypertension. Resolving any doubt in the Veteran's favor, all three elements of the service connection claim have been satisfied and therefore the criteria for the establishment of service connection for obstructive sleep apnea are met. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs