Citation Nr: 1334012	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-48 994	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center 
in Wichita, Kansas


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from October 1986 to November 2008.  This appeal comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision by the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Wichita, Kansas

In January 2012, the Veteran testified at a video conference hearing before undersigned Veterans Law Judge.  A transcript of this hearing is of record.

The record before the Board consists of the Veteran's paper claims files 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, 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 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.  General Legal Criteria

Service connection may be established for 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 line of duty, in the active military, naval, or air service.  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).  

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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

III.  Factual Background and Analysis

The Veteran served on active duty in the Air Force from October 1986 to November 2008.  A review of the Veteran's service treatment records revealed multiple complaints of fatigue from 2006 to 2008.  A September 2008 inservice treatment report noted the Veteran's two to three year history of sleeping problems.  

In April 2009, the Veteran filed his original claim seeking service connection for chronic fatigue, which was later found to include a claim of obstructive sleep apnea. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).

The Veteran contends that he developed sleep apnea during his military service.  As a result of this disability, he testified that he has experienced fatigue and difficulty sleeping since his service in Japan in 2001.

In support of his claim, the Veteran submitted an August 2009 private sleep study which concluded with a diagnosis of severe obstructive sleep apnea.  

After reviewing the evidence of record, the Board finds that the Veteran's current obstructive sleep apnea was incurred during his military service.  In making this determination, the Board finds the testimony and statements provided by the Veteran to be credible.  As noted above, he reported having problems with sleeping and fatigue since he served in Japan in 2001.  He also testified that he would frequently be awakened by his spouse as a result of his snoring loudly during service.  A review of his service treatment records showed his complaints of difficulty sleeping and fatigue.  Finally, nine months after his discharge from the service, a sleep study performed in August 2009 confirmed his diagnosis of severe obstructive sleep apnea.

Resolving all doubt in favor of the Veteran, service connection for obstructive sleep apnea is warranted.


ORDER

Entitlement to service connection for obstructive sleep apnea is granted.


____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs