Citation Nr: 1332656 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 13-22 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for obstructive sleep apnea ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newark, New Jersey. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDING OF FACT The Veteran's current obstructive sleep apnea originated during his active service. CONCLUSION OF LAW Obstructive sleep apnea was incurred in active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate the claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). II. Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran contends that his current obstructive sleep apnea had its onset during active service. Specifically, the Veteran explained in his August 2013 substantive appeal that during his tour of duty he "experienced abnormal fatigue during daytime hours," thus causing him to take "cat naps" underneath his helicopter between missions. Further, he asserted that the symptoms persisted throughout his term of service, and he did not seek medical attention because, at that time, he was not familiar with sleep disorders. Service treatment records include a March 1966 record which notes a complaint of and treatment for "tension type headaches." A February 1966 separation physical examination report is negative for complaints or a diagnosis of a sleeping disorder. Post-service evidence includes a February 2011 statement from the Veteran's wife, who has a Master of Science in nursing, and is a registered nurse, and adult nurse practitioner. She reported that she has observed the Veteran's sleep pattern since 1966 and noted symptoms such as: intense snoring interrupted by periods of non-breathing, momentary awakenings several times during the night, and complaints of fatigue the day following such episodes. An April 2010 letter from a physician with a private sleep disorder center and the results of a sleep study at the center note a diagnosis of moderate obstructive sleep apnea based upon the fragmented sleeping pattern, number of micro-arousals and gross awakenings, and frequency of disordered breathing events during the sleep study. The record also include a February 2011statement from the sleep center stating, "in light of previous history of excessive sleepiness dating back to military service and sleep disruption resulting from active duty[,] his sleep apnea may have developed and initiated at that time." In addition, a January 2012 letter from the Veteran's physician states "[the Veteran's past history is also relevant for military service in a combat environment . . . . At that time he did experience an irregular sleep/wake schedule as well as obviously potentially traumatic environment. He did have excessive sleepiness and non-restorative sleep during that time. It is my opinion that the experience detailed above is a contributing factor to his sleep disorder at this time." In July 2013, the Veteran was afforded a VA examination. Following the examination and review of the Veteran's pertinent history, the examiner opined that the Veteran's diagnosed obstructive sleep apnea was not related to his military service because his service treatment records did not show a diagnosis or treatment for the disorder. The Board finds that the evidence of record supports a grant of service connection for obstructive sleep apnea. Medical records show that obstructive sleep apnea was diagnosed in April 2010. The Board notes the Veteran has asserted that he has experienced sleep problems beginning with daytime fatigue and "cat napping" during service and that the symptoms have continued since. The Veteran is competent to testify in regard to the onset, continuous nature, as well as observable symptoms such as daytime fatigue. Further, the Veteran's wife is competent to testify to the symptomatology she witnessed after the Veteran left active duty. The Board has found the statements of the Veteran and his wife to be credible. The Board acknowledges that the July 2013 VA examiner opined that the Veteran's currently diagnosed obstructive sleep apnea is not related to active service. The conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991); however, the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this instance the Board finds that VA medical opinion against the claim has limited probative value. In this regard, the Board notes that the only rationale provided is the absence of in-service complaint of or treatment for a sleeping disorder. As discussed above, there is competent evidence of sleep problems in service and thereafter, and the Board has found the statements of the Veteran and his wife to be credible. In contrast, the private medical evidence supporting the claim is entitled to substantial weight. The February 2011 and January 2012 statements indicate that the Veteran's obstructive sleep apnea is likely related to his military service. Further, both statements provide adequate rationale for that conclusion. In this regard, the Board notes that the opinions take into account the credible history provided by the Veteran concerning his sleep problems in service and thereafter. Accordingly, the Board concludes that the preponderance of the evidence supports the claim. Therefore, the Veteran is entitled to service connection for obstructive sleep apnea. (CONTINUED ON NEXT PAGE) ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs