Citation Nr: 1332345 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-44 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Armed Forces Service Corporation ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision issued by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for sleep apnea. In May 2011, this matter was remanded for further development. In September 2011, the Veteran submitted additional evidence without a waiver of initial RO consideration. The Board finds, however, as the decision below is favorable to the Veteran, a remand for initial RO consideration of this evidence is not necessary. FINDING OF FACT The competent, credible, and probative lay and medical evidence of record reasonably supports a finding that the Veteran currently has obstructive sleep apnea that is related to his active military service. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, obstructive sleep apnea was incurred as a result of active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159, 3.326(a) (2013). In this case, the Board has granted in full the maximum benefit allowed by the law in this case. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a present disability, the Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records include a February 1993 treatment record that documents the Veteran's problems with sleeping soundly. A sleep test was ordered to rule out sleep apnea. An April 1993 sleep study was found to be inconclusive; however, the recommendation was to consider a repeat test at a later date. A May 1993 treatment record documents a sleep breathing disorder. A February 1994 treatment record documents that the Veteran was to be seen in consultation for sleep apnea, as he was experiencing coughing episodes at night in which he could not catch his breath. In a September 2006 treatment record, the Veteran reported that he sleeps upright or with extra pillows (at least 2-3) without any change noted in his breathing. He reported that he has been a heavy snorer, per his wife, since the 1990s. Postservice treatment records reveal that the Veteran was diagnosed with obstructive sleep apnea in January 2009 following a sleep study. His diagnosis was confirmed by VA in September 2010. See September 2010 VA examination report. As noted, the Veteran was afforded a VA examination in September 2010 to ascertain the etiology of his currently diagnosed obstructive sleep apnea. The VA examiner determined that it would only be with resort to mere speculation to opine whether or not the Veteran's current claimed sleep apnea began during his active military service. As support for the determination, the VA examiner stated that the Veteran's service treatment records document an inconclusive sleep study in April 1993. Further, the Veteran checked "no" in response to sleep problems on two periodic military examinations in February 2000 and June 2005. As the Board found the September 2010 opinion inadequate, the case was remanded in order for the VA examiner to provide an addendum opinion that closely considered the Veteran's lay statements, the service treatment records, the post-service treatment records, as well as any medical literature. In a June 2011 VA addendum opinion, the VA examiner basically provided the same opinion. He further indicated that it was not possible to objectively determine from the currently available evidence whether or not the Veteran's current sleep apnea began or was caused or aggravated to any degree by his military service. In several statements submitted by the Veteran, he indicated that he experienced difficulty sleeping while on active duty and has had difficulty sleeping since service. First, the Veteran has a current disability. The Veteran received a polysomnogram and was diagnosed with sleep apnea in January 2009. The Veteran has also stated he currently has symptoms of sleep apnea, which he is competent to report. See Davidson, 581 F.3d 131; Jandreau, 492 F.3d 1372. Based on this evidence, a current disability is established. Second, the Veteran experienced relevant symptoms in service. The service treatment records document several incidences where the Veteran complains of sleep breathing problems. In addition, the Veteran reported having to sleep upright or sleep with 2-3 pillows at night. This statement is competent as it details lay observable symptoms. See Davidson, 581 F.3d 131; Jandreau, 492 F.3d 1372. The Veteran's statements in this regard have been consistent. In the context of medical examinations, he has provided consistent statements. There is nothing in the record to indicate the statements are not credible and the statements, along with in-service complaints of sleep breathing problems, are highly probative of in-service incurrence. Third, the competent evidence shows that there is a nexus between the Veteran's in-service event and his current disability. Looking at the lay evidence, the Veteran has consistently reported that his snoring, breathing difficulties during sleep, and general difficulty sleeping have persisted since service. See Davidson, 581 F.3d 131; Jandreau, 492 F.3d 1372. The statements are competent, credible, and probative of the existence of a nexus. Turning to the medical evidence, the VA examiner was unable to determine whether or not the Veteran's current sleep apnea was related to his in-service sleep breathing problems. He claimed such an opinion was impossible without objective evidence. Possible or not possible is not a standard used by VA and it was not what was requested from the examiner. As the examiner was unable to provide an opinion, the Board finds that the evidence is neither for nor against the Veteran's claim, therefore, affording him the benefit of the doubt, it is reasonable that the Veteran's current sleep apnea is related to the noted in-service sleeping problems. Since the competent lay and medical evidence of record shows a nexus between the Veteran's current disability and his service, the Board finds the third element of service connection is met. In sum, the Board finds the lay and medical evidence of record raises a reasonable doubt that it is at least as likely as not that the Veteran has a current disability that was incurred during his active duty service. As such doubt is resolved in favor of the Veteran. Therefore, the Board finds that service connection for obstructive sleep apnea is warranted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs