Citation Nr: 1333289 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-39 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran performed verified active duty service from November 1986 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2012, the Board remanded the claim to the Appeals Management Center (AMC) for addition development. Although the AMC failed to acquire the Veteran's service treatment records from his reserve service, such error is harmless as this claim is being granted. In addition to the paper claims file, there is an electronic claims file associated with the claim. A review of the documents in such file reveals that they are duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. In October 2012, the AMC issued a supplemental statement of the case and returned the case to the Board. The Veteran subsequently submitted additional evidence without a waiver of review by the agency of original jurisdiction. As the claim for entitlement to service connection is being granted, there is no prejudice to the Veteran in proceeding without first ensuring the agency of original jurisdiction's review of the new evidence in the first instance. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's current sleep apnea is causally related to his military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, sleep apnea was incurred during active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. In light of the fact that the Board allows the benefit sought, discussion of the notice and assistance requirements of the VCAA and a detailed explanation of how VA complied with the Act is unnecessary. Laws and Regulations Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran seeks entitlement to sleep apnea, which he has asserted first began during his active duty service. In August 2011, the Veteran submitted written statements from two former Navy colleagues indicating that while on active duty, he snored heavily, often felt tired, and frequently required daytime naps. The Veteran's service treatment records, which have been found to be incomplete, are silent for any complaints or treatment related to a sleep disorder. The appellant's private treatment records show that the Veteran underwent a sleep study in February 2008 and was diagnosed with obstructive sleep apnea/hypopnea syndrome. Treatment records indicate that his condition continues to be monitored by his private doctors and that he uses a continuous positive airway pressure (CPAP) machine nightly. In May 2012, the Veteran was provided a VA examination by a physician's assistant. The examiner discussed the Veteran's symptoms of daytime sleepiness during active duty service, and indicated in a later e-mail that he had reviewed the claims file. The examiner diagnosed the Veteran with obstructive sleep apnea and ultimately opined that sleep apnea was less likely as not related to his time in service because the appellant was not seen or diagnosed for the disorder during service. The record also includes a May 2008 letter from a private neurologist stating that it was at least as likely as not that the Veteran's sleep apnea may be related to the appellant's military service because the disorder likely had been in existence for several years based on the history provided. In October 2012, the Veteran submitted an additional letter from a private neurologist. While the neurologist did not have access to the Veteran's claims file, he acknowledged that the appellant had not been diagnosed with sleep apnea prior to 2008, but discussed the lay statements submitted by the claimant's former Navy colleagues regarding his snoring and symptoms of fatigue during service from 1994 to 1996. The examiner noted that during the 1990s, obstructive sleep apnea "was under diagnosed and was not aggressively screened for or considered during differential diagnosis." The examiner found that based on the symptomatology described in the lay statements, it was his opinion that is was as likely as not that obstructive sleep apnea was related to his military service. Considering the pertinent evidence above, and resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for sleep apnea is warranted. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board may not, however, reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). In this case, the Veteran's private medical records and a VA examination establish that he has a current diagnosis of obstructive sleep apnea. Credible lay statements submitted by the appellant's former colleagues indicate that the Veteran exhibited symptoms of sleep apnea during his time in active duty service. These colleagues are competent to report on symptoms they observed, such as hearing the Veteran snore and seeing him take daytime naps. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (Laypeople are competent to report on matters observed or within their personal knowledge.). Finally, there is persuasive medical evidence, that of the October 2012 private medical opinion, which found that it was at least as likely as not that the Veteran's sleep apnea first manifested during active duty service. While the October 2012 private neurologist did not have access to the Veteran's entire claims file, the presence of the claims file is not necessarily fatal in determining the adequacy of an examination. The probative value of a medical opinion comes from when it is factually accurate, fully articulated, and with sound reasoning for the conclusion, not the mere fact that the claims file was reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-1 (2008). In this case, the October 2012 medical opinion is based on an accurate understanding of the Veteran's medical history and is consistent with the evidence of record. The neurologist is a board certified specialist in sleep disorders, private medical records show that he had personally examined the Veteran and treated him for sleep apnea on several prior occasions, and the opinion contained an adequate rationale for the conclusion reached. The opinion therefore provides competent evidence favoring the existence of a medical nexus between the Veteran's currently diagnosed sleep apnea and his active duty service. As such, the medical evidence regarding the relationship of the Veteran's current disability and service is at least in equipoise, and entitlement to service connection is warranted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs