Citation Nr: 1326231 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-43 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: James Brakewood, Jr., Veterans Advocate ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1995. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision the RO denied service connection for obstructive sleep apnea. The Veteran has since relocated, and his case is being handled through the Los Angeles, California RO. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDING OF FACT Sleep and respiratory disturbances during service continued after service and were diagnosed as sleep apnea. CONCLUSION OF LAW Current obstructive sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Board is granting the benefit sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating the claim. The Veteran contends that he has obstructive sleep apnea that was symptomatic during service and has continued through the present. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative means of establishing service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records reflect reports and findings on numerous occasions of upper respiratory symptoms, upper respiratory infections, and rhinitis. In a November 1993 medical history the Veteran checked yes for a history of frequent trouble sleeping. For current medications he included clemastine fumarate, an antihistamine. In a November 1994 medical history the Veteran again checked yes for a history of frequent trouble sleeping. In explanation, he wrote that he awakened constantly during the night. He expressed the belief that the awakening might be due to his nerves. He stated that for about a year he had been taking clemastine fumarate, and that he was told that it was for his nerves and sinus problems. On the report of a November 1994 medical examination the examiner checked normal for all areas and symptoms including the nose, sinuses, and psychological functioning. After retirement from service the Veteran received medical treatment at Army and VA facilities. Treatment notes from 1996 through 2006 reflect that the Veteran reported nasal symptoms described as rhinorrhea and rhinitis. He also reported chronic hives and itching. Through that period clinicians prescribed antihistamines. In April 2008 the Veteran underwent a sleep study at a private facility. A sleep specialist physician provided an impression of severe sleep-related respiratory impairment with moderate oxygen desaturations. Later in April 2008 the Veteran submitted his claim for service connection for obstructive sleep apnea. He stated that the condition was diagnosed recently, but that he had experienced the symptoms for years, including while he was on active duty. VA primary care treatment notes from May 2008 reflect that the Veteran's problems included sleep apnea. The treating physician ordered a CPAP unit for the Veteran. Treatment records from 2008 forward from VA and Army facilities reflect the diagnosis of sleep apnea. In August 2008 the Veteran's wife wrote that for approximately fifteen years she had witnessed that the Veteran snored terribly and at times stopped breathing. She stated that she had to bump or shake him to get him to breathe again. She indicated that when the symptoms began she and the Veteran did not know about sleep apnea. She related that because of the sleep apnea the Veteran did not seem to get enough sleep at night and he was always tired. In a November 2009 statement the Veteran wrote that while he was in service he had sleep apnea symptoms but he did not know anything about sleep apnea. He stated that beginning during service he woke up frequently at night. He indicated that his wife told him that at times he stopped breathing in his sleep, and that she bumped him to get him to resume breathing. The Veteran had a VA respiratory examination in December 2010. He reported that during service he had sleep difficulties including frequent awakening. He indicated that during service he reported the symptoms but that the symptoms were not evaluated by any clinician. He reported he was diagnosed with obstructive sleep apnea in 2008 and that he used a CPAP machine to treat it. He indicated that despite the CPAP and medication for insomnia he had awakenings during the night. The examiner expressed the opinion that it is less likely than not that the Veteran's obstructive sleep apnea was related to the sleep problems that the Veteran reported during service. The examiner explained that the sleep issues the Veteran reported during service were not treated or evaluated in service, that his sleep apnea was diagnosed thirteen years after service, and that the development of the Veteran's sleep apnea could not accurately be determined from the medical file. The Veteran essentially contends that frequent awakening he has experienced from service forward, and lapses in breathing during sleep that his wife observed from service forward, were manifestations of sleep apnea that was eventually clinically diagnosed after service. The Veteran, as a lay person, is not competent to make medical diagnoses, but he is competent to report symptoms that he can experience or observe. Medical history reports document that while the Veteran was still in service he reported a year or longer history of difficulty sleeping. Similarly, the Veteran's wife is competent to hear and see when the Veteran snores and stops breathing while sleeping, and to recall over what period those symptoms have occurred. Her statement provides realistic history that is consistent with the service medical history reports. Thus, the Board finds that her statement is credible, and that it constitutes fairly persuasive evidence that the Veteran's breathing lapses during sleep began while he was on active duty. While the Veteran did not receive a diagnosis of sleep apnea until more than ten years after service, medical records from during and after service contain frequent and fairly continuous notations of nasal and sinus symptoms. Considering the evidence that the Veteran has had upper respiratory symptoms fairly continuously during and after service, the evidence that he had awakenings and respiratory lapses during sleep during service that continued after service, and the clinical diagnosis of sleep apnea based on a study of the Veteran's breathing during sleep, the Board concludes that the record at least equivocally indicates that symptoms that began during the Veteran's service and continued thereafter led to the diagnosis of the current sleep apnea. Resolving reasonable doubt in the Veteran's favor, the Board finds that obstructive sleep apnea was incurred in service and is service connected. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs