Citation Nr: 1329598 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-39 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for sleep apnea. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty in the Army National Guard from January 1967 to May 1967 and from October 1990 to May 1991. See DD Form 214s. He also had periods of training both before and after those periods of active duty. See Veteran's personnel file. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claim. The Board notes that the Veteran initially requested a hearing at a local VA office before a member of the Board. See October 2009 VA Form 9. This request was subsequently withdrawn in July 2010, prior to certification of his claim to the Board. In March 2011, the Board remanded this matter for additional development. FINDING OF FACT The only medical opinion evidence relates the onset of the Veteran's sleep apnea to active service or in the alternative as aggravated by his periods of active duty for training (ACDUTRA); there is no contrary medical evidence of record. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for his sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the Veteran's claim for service connection for sleep apnea, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. Analysis The Veteran seeks entitlement to service connection for sleep apnea. He contends that he was discharged because of this condition and that sleep apnea was incurred during his last period of active duty (April 1, 1991) and/or aggravated during subsequent periods of inactive duty for training (INACDUTRA) or active duty for training (ACDUTRA), including ACDUTRA "at Fort Ord, California for three weeks at NTC." See May 2008 VA Form 21-526; February 2009 NOD; October 2009 VA Form 9. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection can be established for disability due to disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA. 38 U.S.C.A. §§ 101(2), (22), (24), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6(a)- (c), 3.303 (2012); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Service connection can also be established for disability due to injury, but not disease, incurred or aggravated in the line of duty during a period of INACDUTRA. 38 U.S.C.A. § 101(2), (23), (24) (West 2002); 38 C.F.R. §§ 3.1(d), 3.6(a)- (d). Presumptive periods generally do not apply to periods of ACDUTRA or INACDUTRA. 38 C.F.R. §§ 3.307, 3.309 (2012); Biggins v. Derwinski, 1 Vet. App. 474 (1991); Hines v. Principi, 18 Vet. App. 227 (2004); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Paulson v. Brown, 7 Vet. App. 466 (1995). Injury is defined as harm resulting from some type of external trauma and disease is defined as harm resulting from some type of internal infection or degenerative process. VAOPGCPREC 4-2002 (2002), 69 Fed. Reg. 25176 (2004). As sleep apnea is a disease, rather than an injury, the Board finds that the question of whether the Veteran was performing INACDUTRA at any point in time is immaterial as he can only be compensated for an injury incurred in the line of duty during a period of INACDUTRA. However, as was noted above, the Veteran's personnel records reflect that with the exception of the period of 1995-1996, the Veteran participated in periods of ACDUTRA each year between September 1991 and March 2005. Review of the Veteran's service treatment records are devoid of reference to complaint of, or treatment for, any problems with sleep apnea during either period of active duty (January 1967 to May 1967; October 1990 to May 1991). In an April 1991 self report of medical history, the Veteran stated that he was not in good health and noted he had a history of chronic or frequent colds, sinusitis, and dyspnea. In a July 1996 personal medical history for cardiovascular risk assessment, the Veteran noted that he had dyspnea, pain in his chest, and palpitations when he exercised hard. The service treatment records show that in December 1997, the Veteran was seen in the emergency room after falling asleep in his car when coming home from work. On follow-up later that same month, the Veteran stated that he snored loudly at night. He also stated that he fell asleep daily especially when he got in the car or sat down to read a book. The Veteran was diagnosed with obstructive sleep apnea on January 6, 1998, following a sleep study. At that time, the Veteran provided a history of daytime hypersomnolence and episodes of falling asleep while driving. It was noted in the sleep analysis that the Veteran had 53 apneic events associated with mild oxygen desaturations. Most of those were obstructive hypopneas. The Veteran's service personnel records reveal that with the exception of the period of 1995-1996, the Veteran participated in periods of ACDUTRA as a member of the National Guard between September 1991 and March 2005. An April 2004 initial medical review reflects that the Veteran had sleep apnea and was on a CPAP, found nondeployable and unfit. A July 2005 memorandum noted that in April 2004, the Veteran was identified as having sleep apnea, but his unit failed to request a fitness for duty evaluation for the Veteran prior to being mobilized. He was subsequently determined to be unfit for duty/deployment due to his sleep apnea and the need for a CPAP machine and was ultimately transferred to the retired Reserve effective October 31, 2005. See August 2005 record from the Departments of the Army and the Air Force; Request for Separation of Enlisted Soldier (Reserve). A July 1974 private hospital record notes that the Veteran stated he was too sleepy during the day. Objective findings were noted as "nothing." VA medical records dated from September 2004 to October 2008 note that the Veteran had sleep apnea. In his May 2008 claim for VA disability benefits, the Veteran indicated that his sleep apnea began in April 1991. In his October 2009 substantive appeal, the Veteran stated that he had his problem with sleep apnea during his terms of enlistment. He further stated that his sleep apnea should have been diagnosed during many physicals he had in service. He contends, essentially, that he had respiratory problems during service and that his sleep apnea was aggravated during active service and during periods of ACDUTRA. In April 2011 the Veteran underwent a VA respiratory disease examination. The Veteran indicated that the date of onset of his sleep apnea was in 1972 and that it progressively worsened. He was diagnosed with sleep apnea in 1998 after an automobile accident. The VA examiner opined that it was at least as likely as not that the Veteran's sleep apnea had its onset during active service, or if not, was incurred or aggravated beyond its natural progress during any period of ACDUTRA between September 1991 and March 2005. He noted that the Veteran was given a CPAP machine during service in 2000. The VA examiner further indicated that his opinion was provided after careful examination of the provided records and the Veteran, with relation to considered condition (s), and similar cases remarked in textbooks of medicine. In May 2011, the VA examiner noted that he reviewed the Veteran's claims file, which had not been provided at the time of the actual examination, and thereafter made no changes to his prior opinion. In this case, the Board finds that the Veteran is competent and credible to report that his sleep apnea symptoms began in service. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). Moreover, the Board considers the statements of the Veteran be credible as they are facially plausible, internally consistent, and consistent with the other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Further, an April 2011 VA examiner opined that the Veteran's sleep apnea either had its onset in service or in the alternative, was aggravated by his periods of ACDUTRA. In support of his opinion, he appeared to rely on the Veteran's reported history and a review of medical literature. In addition, after reviewing the Veteran's claims file in May 2011, he made no changes to his opinion. The Board points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Significantly, moreover, there is no evidence to the contrary of the favorable April 2011 VA medical opinion. VA should not seek an additional medical opinion where favorable evidence in the record is unrefuted. Mariano v. Principi, 17 Vet. App. 305 (2003). Accordingly, by resolving all doubt in favor of the Veteran, the Board concludes that the criteria for service connection for sleep apnea are met. 38 U.S.C.A. § 5107(b); 38 CFR § 3.102. ORDER Service connection for sleep apnea is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs