Citation Nr: 1328849 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-11 269A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife (M.A.) ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April to August 1984 and from February 1987 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The St. Petersburg, Florida RO certified the appeal to the Board. In August 2010, the Veteran and his wife (M.A.) testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. FINDING OF FACT The evidence indicates that the Veteran's sleep apnea was incurred in service. CONCLUSION OF LAW The criteria for establishing service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that his current sleep apnea manifested in service. He and his wife testified that he began having difficulties sleeping when he returned from the Gulf War in 1990. They reported that he was always tired, falling asleep at work, and had daytime drowsiness. His wife said she witnessed him stop breathing in his sleep and that he was very restless. Board Hearing Tr. at 3, 10. He said his sleep difficulties were attributed to stress and he underwent sleep classes, but he continued to have problems through the remainder of his service and after he was discharged from service. Board Hearing Tr. at 4-5. Eventually, he said a VA physician suggested a sleep study and he was diagnosed with sleep apnea. Board Hearing Tr. at 6. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Medical records establish that the Veteran has a current diagnosis of sleep apnea. The findings of a September 2008 sleep study at Geary Community Hospital reflect a diagnosis of obstructive sleep apnea. There is also evidence suggesting in-service manifestations of sleep apnea. The Veteran's service treatment records reflect that in March 1995, the Veteran complained that he did not "sleep soundly anymore" and was fatigued. In September 2004, on a post deployment health assessment, he reported that he still felt tired after sleeping. On an April 2006 report of medical history, he reported that he had trouble sleeping since 1991 and was told it was related to stress. He said his symptoms were worse and it was noted that he would be scheduled for a sleep group session at the behavioral clinic in May. He retired from service in September 2006. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the Board finds that the Veteran and his wife are both competent and credible to report on observable symptoms, such as restless sleep, breathing cessation during sleep, and daytime fatigue, both while on active duty in the military and during the two years after retirement until he was diagnosed with sleep apnea by a medical professional. Under these circumstances, the lay evidence is adequate to establish an in-service diagnosis of sleep apnea. In addition, the Board notes that the Veteran's VA physician (Dr. D.C.) submitted a positive nexus opinion in August 2010. The physician noted that the Veteran had been diagnosed with severe gastric reflux during service in 2006 and with sleep apnea in 2008. He reported that the medical literature indicates that at least 80 percent of patients diagnosed with gastric reflux also have concurrent sleep disturbances and that the two conditions often occur together. For these reasons, the physician opined that he believed the Veteran's sleep apnea was service connected. In summary, there is persuasive lay and medical evidence that the Veteran's current sleep apnea manifested in service. As such, service connection for sleep apnea is warranted. ORDER Service connection for sleep apnea is granted. ____________________________________________ B. C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs