Citation Nr: 1330175 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-18 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to June 1982, and from July 2005 to October 2006, including service in Kuwait from October 2005 to October 2006. He also has service with the Michigan Army National Guard; presumably this includes periods of active duty for training (ACDUTRA) and of inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2010, the Veteran testified before the undersigned Veterans Law Judge during a video conference Board hearing. A transcript of the hearing is of record. In September 2010, the Veteran submitted additional evidence and waived initial RO consideration of this evidence. Therefore, the Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, obstructive sleep apnea had its clinical onset during the Veteran's last period of active service. CONCLUSION OF LAW Obstructive sleep apnea was incurred during the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). Given the determination reached in this decision, the Board is satisfied that adequate notice and development have taken place and that there is a sound evidentiary basis at present for resolution of the claim for service connection for obstructive sleep apnea without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). Generally, in order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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). 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); 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. Factual Background and Analysis The Veteran seeks service connection for obstructive sleep apnea. He asserts that his current sleep apnea is related to service as he was diagnosed with obstructive sleep apnea within months of his separation from his last period of active service. In his Board testimony, the Veteran also contends that his wife first noticed the problem when he was home on leave during the summer of 2006 and then begged him to see a doctor after his discharge. Service treatment records do not show treatment for, or a diagnosis of, sleep apnea. His September 2006 post-deployment health assessment was silent regarding sleep complaints. Private medical records show that in February 2007, or less than four months after the Veteran's discharge from his last period of active duty, he was seen by his private physician. It was noted that the Veteran's wife said that he stops breathing for extended periods of time during the nighttime. Diagnosis was probable sleep apnea. A March 2007 private medical record from Dr. E.A. revealed that the Veteran had been referred to a sleep clinic in Michigan where he was diagnosed with a positive case of obstructive sleep apnea. A December 2008 VA medical record noted that the Veteran had been diagnosed with sleep apnea and used a CPAP machine, which he did not like because it was uncomfortable. The Veteran underwent a VA examination in January 2009. The Veteran told the examiner that he served in Kuwait before being discharged from his last period of active duty. He complained of almost chronic and daily fatigue since late 2006. He told the examiner that he was told his fatigue was related to his sleep apnea. He said his sleep apnea symptoms - snoring off and on and apneic breathing - went back to his last year in service in 2006. He has been using a continuous positive airway pressure machine almost every night since April 2007. Diagnosis was sleep apnea on the CPAP machine. The examining VA physician did not provide a nexus opinion whether the Veteran's sleep apnea was related to his service. During a Board hearing in July 2007, the Veteran testified that while stationed in Kuwait in 2005 and 2006 he had a stressful job as a battle captain. He worked in a control center with upscale technology and video conferencing involving the battlefields in Iraq, Africa, and Afghanistan. He said that he noticed he began to have to fight to stay awake, but thought at the time that such was due to other factors than sleep apnea. His wife first noticed, at the time the Veteran went home on leave in either July 2006 or August 2006, that he tossed and turned in his sleep and sounded like he stopped breathing. After discharge later that year she "begged" him to see a doctor, who subsequently referred him to a sleep specialist. See hearing transcript at pp. 3-6. Based upon a review of all the evidence of record, the Board finds that service connection for obstructive sleep apnea is warranted in this case. As noted above, the Veteran currently is diagnosed with obstructive sleep apnea. Accordingly, the first requirement for service connection is met as the Veteran has been diagnosed with a current disability. The Board also finds competent and credible the lay evidence as set forth above as to the Veteran's symptoms associated with his obstructive sleep apnea. The Federal Circuit has explicitly rejected the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In this case, although service treatment records are silent as to sleep apnea, the Board finds that the lay statements of the Veteran describing the onset and chronicity of symptoms associated with obstructive sleep apnea first manifesting during his last period of active service to be credible and supported by the later diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the second requirement for service connection is also met for this claim. The question remains, therefore, whether his current obstructive sleep apnea is related to his active duty service. While the VA medical examination noted above did not formally support such a nexus, the examining physician had apparently not been requested to proffer an opinion. The plain fact that the Veteran credibly testified that his symptoms appeared during service (difficulty staying awake in a control center in Kuwait while working as a battle captain and while home on leave during the summer of 2006) and that he was first treated for sleep apnea during the winter of 2007, within several months of discharge, do tend to support that a nexus exists between the currently diagnosed obstructive sleep apnea and military service. As there is no formal mention of sleep apnea in the record before the Veteran's treatment in the winter of 2007, and the Veteran was diagnosed with obstructive sleep apnea within four or five months of discharge from active duty in October 2006, along with his assertions of symptoms during service, these facts are sufficient to place the evidence for and against this claim into relative equipoise, so as to warrant resolving reasonable doubt in the Veteran's favor regarding whether his current sleep apnea is related to his service. 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence found within the claims file is, at the very least, in equipoise as to the question of whether the Veteran's sleep apnea is related to service. There can be no doubt that further medical inquiry could be undertaken with a view towards obtaining a formal medical opinion on the question. However, the Board finds that should have been done when the Veteran appeared for his VA examination in January 2009 and a remand for an opinion now in 2013 would only prolong adjudication of this claim which has been pending now for five years. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the conclusion of the January 2009 VA examiner that the Veteran is diagnosed with obstructive sleep apnea, the credible lay evidence in the file showing symptomatology of sleep apnea appeared toward the end of the Veteran's last year of active duty, and the lay and medical evidence showing that the Veteran was tested, diagnosed and treated for sleep apnea within five months of discharge from active duty are sufficient to provide proof of a relationship between the Veteran's sleep apnea and his last period of active service. Resolving reasonable doubt in favor of the Veteran, the Board finds that sleep apnea was incurred during service and the claim for service connection for obstructive sleep apnea is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs