Citation Nr: 1335733 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-07 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for sleep apnea. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1992 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Cleveland, Ohio. In March 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing at the RO located in Cleveland, Ohio. A transcript of the proceeding has been associated with the claims file. In June 2013, the Board requested a Veterans Health Administration (VHA) medical opinion. Subsequently, a July 2013 VHA medical opinion was obtained, and the Veteran was provided with a copy and a 60-day period to submit additional argument to the Board. FINDING OF FACT The Veteran's sleep apnea has been related to his active duty service; while there is some 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 June 1992 to March 2000. He claims that he has had sleep apnea since his active service. As an initial matter, VA treatment records in the claims file reflect that the Veteran has been followed for diagnosed sleep apnea since March 2008. The Veteran's service treatment records are silent as to any diagnosed sleep apnea. As no sleep apnea condition was noted on the Veteran's entry into active service, the presumption of soundness applies. See 38 U.S.C.A. § 1111 (West 2002). The Veteran submitted several buddy statements in support of his claim. A March 2013 buddy statement from L.H. reflects that he wrote that he served with the Veteran from 1997 to 1999, that he was his roommate during that time, and that he is currently a registered respiratory therapist working at a VA medical center. L.H. reported that he witnessed extremely loud snoring as well as numerous periods of "apnea (not breathing)." He wrote that he saw how the Veteran's lack of sleep affected his everyday activities, and that he appeared to always be fatigued and would be caught napping on the job. In a March 2013 buddy statement, G.B. wrote that he served with the Veteran in Guam in 1992 and shared a room with him, that he witnessed loud snoring as well as several pauses in the Veteran's breathing, and that he would check on the Veteran to make sure he was alright. In a March 2013 buddy statement, Sgt. S.W. wrote that she served with the Veteran at Dover AFB between 1997 and 1999 and developed a personal relationship with him, and that on several occasions, she witnessed him experiencing trouble breathing during his sleep and she would be awakened and annoyed by his snoring. Also, in another March 2013 buddy statement, Sgt. L.J. wrote that she served with the Veteran at Osan AB in South Korea between 1996 and 1997 and that they were roommates. She wrote that several times, she woke the Veteran due to his snoring, and that he woke several times trying to catch his breath. A July 2013 VHA medical opinion was provided by Dr. A.G., who wrote that he is Board certified in pulmonary/critical care/sleep medicine, and that in addition to practicing at the VA medical center, he serves as the medical director of the Stony Brook University Sleep Disorders Center. Dr. A.G. opined that the Veteran's sleep apnea preexisted service, and that the severity of his sleep apnea in service was about the same as when he underwent the sleep study in 2008. The examiner did not opine as to whether the Veteran's sleep apnea was aggravated by service. The examiner reasoned sleep apnea is fundamentally related to upper airway anatomy that develops at a young age and that obesity is a factor, and the Veteran's weight was around the same in service as in 2008 when he was formally diagnosed with sleep apnea. Also, the examiner acknowledged the above noted buddy statements, including from the respiratory therapist, in which they reported sleeping in the same room as the Veteran and witnessing him snoring loudly, and that he experienced apnea and daytime sleepiness. In light of the above medical evidence of a current sleep apnea disorder, the buddy statements showing they witnessed the Veteran experience apnea events during his sleep in service, particularly the statement from L.H., a registered respiratory therapist, as well as the July 2013 opinion from Dr. A.G. that the Veteran had sleep apnea in service as severe as when he underwent the sleep study in 2008, the Board finds that the preponderance of the evidence is in favor of granting the Veteran's claim for service connection for sleep apnea based on in-service incurrence. The Board acknowledges that Dr. A.G., in his July 2013 medical opinion, opined that it is unlikely that the Veteran's sleep apnea had its onset in service or is otherwise related to service because it preexisted service (without addressing whether it was aggravated by service beyond the natural progress of the disease). The Board notes again, however, that the presumption of soundness applies in this case, and Dr. A.G. did not opine as to whether there is clear and unmistakable evidence that the Veteran's sleep apnea preexisted service, and if so, whether there is clear and unmistakable evidence that it was not aggravated by service. At the same time, the Board notes that there is no medical evidence of sleep apnea prior to the Veteran's active service, such that it appears in this particular case there is not sufficient evidence warranting further delay to obtain another medical opinion to address whether the is clear and unmistakable evidence that the Veteran's sleep apnea preexisted service and was not aggravated by service. Therefore, the Board is left with the March 2013 opinion of L.H., a registered respiratory therapist, that the Veteran experienced apnea in service, as well as the July 2013 opinion of Dr. A.G. insofar as it relates the Veteran's sleep apnea to his active service. Therefore, 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. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs