Citation Nr: 1333336	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  06-08 911	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

The Veteran served on active duty from May 1972 to May 1975, and from February 2003 to March 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Montgomery, Alabama.

In January 2011, the Veteran testified before a Acting Veterans Law Judge at a Travel Board hearing at the RO in Montgomery, Alabama.  A transcript of the proceeding has been associated with the claims file.

In July 2011 and October 2012, this matter was remanded by the Board for further development.  Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review.


FINDING OF FACT

The Veteran's sleep apnea has been related to his active duty service; while there is evidence indicating that this disability preexisted service, this evidence does not reach the threshold of demonstrating that the disability clearly and unmistakably preexisted service.






CONCLUSION OF LAW

The Veteran's sleep apnea was incurred during active service.  38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The Veteran's claim for service connection for sleep apnea is granted herein, as explained in detail below.  As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  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.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2013).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2013).

To establish a right to compensation for a present disability, a 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).

"When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service."  Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003).  A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  VAOPGCPREC 3-2003 at 10-11 (July 16, 2003).

The Veteran served on active duty from May 1972 to May 1975, and from February 2003 to March 2004.  He claims that he has sleep apnea that was caused or aggravated by exposure to smoke and other airborne toxins during his service in Iraq between April 2003 and March 2004.

As an initial matter, a November 2003 letter from the U.S. Army, 926th Engineer Group (the Veteran's unit) reflects that in June 2003, the Veteran was one of several named soldiers exposed to sulfur smoke in Mosul, Iraq due to a large fire at a sulfur mining company.  Also, the Board acknowledges that on his March 2004 post-deployment health assessment, the Veteran reported that he had been exposed to smoke from burning trash or feces, as well as JP8 or other fuels.  The Board also acknowledges the Veteran's testimony at the Board hearing with regard to his job duties in Iraq including the disposal of feces with JP8.  See Transcript at 9.  Based thereon, actual exposure to sulfur smoke and burning trash or feces during the Veteran's service in Iraq is conceded.  

The Veteran's May 1972 enlistment examination report and his October 2001 retention examination report (prior to his second period of active duty) are both silent as to any diagnosed sleep apnea, although the Board acknowledges that the Veteran reported on his October 2001 report of medical history that he coughed at night, which was noted by the physician as due to sinus drainage.  As no sleep apnea condition was noted on the Veteran's entry into service either period of active service, the presumption of soundness applies.  See 38 U.S.C.A. § 1111 (West 2002).

The Board also acknowledges that a May 26, 2003 service treatment record reflects that the Veteran complained of a burning hacking cough, and he was diagnosed with an upper respiratory infection.

The Veteran submitted an October 2007 buddy statement from W.S., in which he reports that he roomed with the Veteran while they served in Mosul, Iraq, and that he would wake the Veteran at night when he stopped breathing.  He also reported that often the Veteran would sleep upright in a chair.

The Veteran testified at the Board hearing that when he returned from Iraq, his wife would wake him up in the middle of the night because he would be gasping for air.

In that regard, the Board acknowledges an October 2007 lay statement from the Veteran's wife in which she reported that the Veteran had always snored, but since he returned from Iraq, it was worse.  She reported that the Veteran would wake up due to his own snoring, and that he would also stop breathing or choke while sleeping and that she would wake him.  The Board likewise acknowledges that a June 2007 VA treatment record reflects that the Veteran's wife reported to a VA pulmonary/sleep medicine clinician that the Veteran had been experiencing sleep problems since his return from Iraq.  The Board is cognizant that, generally, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment.  See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992).

VA treatment records reflect that in November 2006 and December 2006, the Veteran complained of waking himself up at night snoring too loudly, and that his wife would wake him up occasionally and tell him to breathe.  An April 2007 VA treatment record reflects that a sleep study was performed, and May 2007 and June 2007 records reflect that the Veteran had been diagnosed with sleep apnea and issued a CPAP machine.

A September 2011 VA examination report reflects that the examiner noted the Veteran's history of exposure to dust storms and feces with diesel fuel in Iraq, and that his buddy in service and his wife (when he returned) would wake him at night due to snoring loudly and problems with breathing.  The Veteran reported that he did not have these problems prior to his service in Iraq.  The examiner opined that the Veteran's sleep apnea is less likely as not etiologically related to his service.  The examiner reasoned that there is no confirmed literature or research that supports that sleep apnea is caused by or related to smoke or inhaled irritants.

The Board remanded the Veteran's claim in October 2012 for a VA medical opinion to address the lay statements regarding his symptomatology in service.

An April 2013 VA medical opinion reflects that the examiner reviewed the claims file and opined that the Veteran's sleep apnea clearly and unmistakably preexisted service, and was clearly and unmistakably aggravated by service beyond the natural progression of the disease.  The examiner reasoned that the Veteran's wife reported that he suffered from snoring prior to his (second) period of service that worsened upon his return, which snoring most likely indicated sleep apnea that was aggravated by his active duty service.

In this case, there are conflicting opinion as to whether there exists a positive link between sleep apnea and service.  The April 2013 opinion is favorable in this regard, whereas the September 2011 opinion is unfavorable.  Both opinions are supported by a rationale, and the Board finds that the favorable April 2013 opinion has at least as much probative weight as the September 2011 opinion.  The Board has thus resolved all doubt in the Veteran's favor and finds such a causal link with service.  Significantly, despite the language used therein, the Board does not find that the April 2013 opinion is strongly enough worded to predicate a determination that the disability clearly and unmistakably preexisted service.  While that terminology is used, the examiner's accompanying rationale was that snoring "most likely" indiated sleep apnea.  This wording simply is not unambiguous enough to suggest a clear and unmistakable finding.  Rather, the Board must conclude that the section 1111 presumption of soundness has not been rebutted, and the relationship of sleep apnea to service is one of incurrence, not aggravation.  

In summary, the Board concludes that service connection for preexisting sleep apnea that was incurred in service is warranted.  This claim is thus granted in full.


ORDER

Entitlement to service connection for sleep apnea is granted.



______________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs