Citation Nr: 1329550	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  10-31 310	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, 
Texas


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Young, Counsel 


INTRODUCTION

The Veteran had active duty service from July 1982 to July 
1997.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 2008 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA).  The Veteran testified at a Board videoconference 
hearing in February 2012. 


FINDING OF FACT

The Veteran's sleep apnea was manifested during his active 
duty service.  


CONCLUSION OF LAW

Sleep apnea was incurred in the Veteran's active duty 
service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. 
§ 3.303 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The issue before the Board involves a claim of entitlement 
to service connection. Applicable law provides that service 
connection will be granted if it is shown that the veteran 
suffers from disability resulting from an injury suffered or 
disease contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of 
duty, in the active military, naval, or air service.  
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

The Board first notes that the fact of current chronic 
disability has been met.  Specifically, the claims file now 
includes 2006 and 2011 private medical records (sleep 
studies) which show that the Veteran has been diagnosed with 
sleep apnea.  The remaining question is whether the sleep 
apnea is causally related to his period of active duty 
service. 

Service treatment records do reference complaints of 
shortness of breath, but there are no documented sleep 
problems or difficulty breathing while sleeping.  On VA 
examination in September 1997 for unrelated disorders, a 
history of shortness of breath was noted, but there was no 
reference to any sleep difficulty.  As already noted, 
medical records dated in 2006 and 2011 do show current sleep 
apnea disability.  

The Veteran has testified under oath that during service he 
was told numerous times that he snored and stopped breathing 
while sleeping and that kept others awake.  The Veteran has 
submitted statements from fellow service members attesting 
to the Veteran's snoring and gasping while sleeping.  More 
recently, a statement from the Veteran's wife was received.  
In this letter, the Veteran's wife reported that she met the 
Veteran in 1995 and over the next several years noted his 
snoring and trouble breathing at night.  She further stated 
that these symptoms continued over the years and that 
testing in 2006 verified sleep apnea.  

The Board notes here that a VA medical opinion does not 
appear to have been obtained.  However, the Veteran's 
testimony and statements from his wife and fellow servicemen 
all place the onset of difficulty with breathing while 
sleeping to the period the Veteran was on active duty.  The 
undersigned was able to observe the Veteran at the February 
2012 hearing and has no reason to question the credibility 
of his testimony.  Likewise, other than the fact that the 
Veteran's wife and fellow service members must be viewed as 
biased to some extent simply on the basis of their 
relationships, there is otherwise no reason to doubt the 
credibility of their statements.  The Board is persuaded 
that the Veteran's sleep apnea did have its onset during his 
active duty service.  Service connection is therefore 
warranted. 

In closing, there is no need to undertake any review of 
compliance with the Veterans Claims Assistance Act of 2000 
(VCAA) and implementing regulations in this case since there 
is no detriment to the veteran as a result of any VCAA 
deficiency in view of the fact that the full benefit sought 
by the Veteran is being granted by this decision of the 
Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 
5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  By 
letter dated in March 2009, the Veteran was furnished notice 
of the manner of assigning a disability evaluation and an 
effective date.  He will have the opportunity to initiate an 
appeal from these "downstream" issues if he disagrees with 
the determinations which will be made by the RO in giving 
effect to the Board's grant of service connection.


ORDER

Entitlement to service connection for sleep apnea is 
warranted.  The appeal is granted. 



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs