Citation Nr: 1328524 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-38 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to July 1992, with three years and nine months of prior active service. The Veteran also served in the Air Force National Guard from June 1993 to February 2004, with additional periods of active duty to include: June 1993 to September 1993, November 2001 to December 2002, and February 2003 to November 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. When the case was before the Board in July 2012, it was remanded for further development. The case is once again before the Board for further appellate action. FINDINGS OF FACT 1. Chronic sleep apnea was present during a period of active duty from February 2003 to November 2003. 2. Sleep apnea was not diagnosed at the time of the Veteran's entrance onto active duty in February 2003. 3. The evidence does not clearly and unmistakably establish that sleep apnea existed prior to the Veteran's period of active duty from February to November 2003 and underwent no permanent increase in severity as a result of that period of active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans are presumed to be in sound medical condition at the time of entry into service except for defects actually noted when examined for entry into service. This presumption of soundness can be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304; see also VAOPGCPREC 3-2003 (July 16, 2003). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). 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. Factual Background and Analysis The Veteran claims that he incurred sleep apnea during a period of active duty. He acknowledges that the disorder was not diagnosed until after his last period of active service, but alleges that the disorder was manifested in service by symptoms of daytime sleepiness and snoring. In support of his contention, the Veteran submitted two statements dated in June 2004 and November 2012 from a fellow serviceman who described seeing the Veteran struggle with daytime sleepiness and fatigue during active duty assignments in Southwest Asia. The Veteran's military records confirm deployments to Southwest Asia in the 1990s. The Veteran's service records confirm active duty from July 1982 to July 1992, and it is noteworthy that the DD-214 for this time period also indicates three years, nine months, and nine days of prior active service. Records also confirm the Veteran was in the Air Force National Guard from June 1993 to February 2004. During that time frame, active duty is confirmed from June 1993 to September 1993, from November 2001 to December 2002, and from February 2003 to November 2003. The record reflects that the Veteran was initially diagnosed with sleep apnea in June 2004, after his final period of active duty. The report of a December 1981 entrance examination for his first period of active duty shows that no pertinent abnormality was noted. The service records do not include any reports of enlistment examinations for his other confirmed periods of active duty. The report of a May 1992 periodic examination reflects that sinus bradycardia with sinus arrhythmia was noted with a borderline EKG. Follow-up EKG was normal, however, and no disorder was diagnosed at that time. The Veteran also submitted opinions from his private physicians, Dr. Doekel and Dr. Hunker. In June 2004, Dr. Doekel opined that the Veteran struggled with symptoms of chronic obstructive sleep apnea for the last 20 years, but was only diagnosed as of January 2004. In August 2005, Dr. Doekel further explained that the Veteran had a lengthy history of snoring and excessive daytime sleepiness. His records also indicate abnormal EKG readings in July 1997 and October 2002 with borderline hypertension in 1992. He noted that a connection between cardiovascular disease and untreated sleep apnea has been well documented. Thus, in light of the Veteran's medical history, Dr. Doekel opined that the Veteran's sleep apnea likely occurred prior to 1997. Dr. Hunker indicated, "In retrospect, we believe [the Veteran] has had sleep apnea based on symptoms of snoring, apnea, daytime sleepiness, etc. as far back as the mid 1980's." The Veteran was afforded VA examinations in June 2005, May 2007, and most recently in August 2012. The June 2005 examiner merely indicated that the Veteran's sleep apnea was diagnosed one year prior. The examiner did not proffer an opinion with regard to etiology. The May 2007 VA examiner indicated inability to determine whether the Veteran's sleep apnea began during a period of active duty. Therein, the examiner noted that snoring is not necessarily diagnostic of sleep apnea. Unlike Dr. Doekel's analysis of the record, the May 2007 VA examiner found no documentation of hypertension, which cut "against the idea that the Veteran had significant sleep apnea that remained untreated for 20 years." Overall, the examiner concluded, "the question as to when his sleep apnea began is too speculative." In light of the conflicting opinions, the Board remanded this claim to obtain an additional VA examination and opinion. The Veteran was afforded a VA examination in August 2012. The examiner reviewed the Veteran's pertinent history and the private and VA opinions. The examiner found no documentation of sleep disordered breathing during the active duty periods. The examiner acknowledged, however, that sleep apnea is a chronic condition that is, "usually present for several months to many years before diagnosis." Determining how long before the Veteran's January 2004 diagnosis of sleep apnea he actually had symptoms of sleep apnea, however, would require resorting to mere speculation. The examiner did opine sleep apnea "most likely has been present for several years." The examiner further declined determining whether sleep apnea first occurred during a period of active duty or was in any way aggravated during a period of active duty indicating to do so would require speculation. Similarly, the examiner could not determine whether the Veteran's sleep apnea clearly and unmistakably pre-existed any period of active duty and clearly and unmistakably did not worsen during any period of active duty. The Veteran's statements, the statements from the person who served with him, and the private medical opinions of record all support the proposition that the Veteran's sleep apnea was present during his final period of active duty. The VA examiners were unable to provide opinions concerning when the sleep apnea began. They did not opine that the sleep apnea was not present during the Veteran's final period of active duty. Therefore, the Board finds that the evidence adequately establishes that chronic sleep apnea was present during the Veteran's final period of active duty. Since sleep apnea was not diagnosed on an examination for entrance onto active duty in February 2003, the presumption of soundness applies. The evidence does not clearly and unmistakably establish that sleep apnea existed prior to the final period of active duty and clearly and unmistakably establish that the sleep apnea underwent no permanent increase in severity as a result of that period of active duty. Therefore, the presumption of soundness has not been rebutted, and the Veteran is entitled to service connection for sleep apnea. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs