Citation Nr: 1336037	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  10-15 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for sleep apnea. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1996 to August 1999 and October 2001 to February 2008.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

The evidence indicates that the Veteran's current sleep apnea was incurred during military service.


CONCLUSION OF LAW

The criteria for establishing service connection for sleep apnea have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

The Veteran asserts that he has sleep apnea which began during service.  He reports noticed snoring and daytime sleepiness before separation from service.  

Generally, in order to establish direct service connection, three elements must be established.  There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service treatment records (STRs) are negative for complaints of tiredness or sleep apnea.  

In a post-service VA progress notes dated in February 2008, the Veteran reported he has problems with sleep and he takes an over the counter sleep medication several times each month.  He ascribed his sleep problems to hypervigilance.  The Veteran participated in VA sleep group sessions from April to May 2008.  In a June 2008 VA progress note, the Veteran requested a sleep study.  He reported difficulty falling asleep and staying asleep.  The examiner noted that the Veteran attempted sleep hygiene classes, and made some improvements, but together he and his therapist thought a sleep study was needed.  A July 2008 private sleep study included a diagnosis of moderate sleep apnea.  In an October 2008 VA progress note, the Veteran reported a longstanding history of sleep problems.  He thought it was reverse jet lag from his past experiences, but recently he was diagnosed with sleep apnea.  The diagnosis was sleep apnea. 

In July 2011, the Veteran submitted letters from his wife (a veteran) and a former service-member who both served with the Veteran.  They attest to the Veteran having tiredness during the day.  His wife also stated that the Veteran snored and would wake up in the middle of the night feeling breathless or suffocated.  

The Veteran underwent a VA examination in December 2009.  The examiner determined that the Veteran's statements before and shortly after leaving service are not suggestive of sleep apnea.  There was no evidence in STRs of an early manifestation of sleep apnea.  He specially denied snorting, feeling tired, or having respiratory or sleeping problems.  During his initial visits in the VA systems, he complained of sleeping problems related to hypervigilance.  

Although the VA examiner found the Veteran's sleep apnea was not incurred in active duty, the Board does not find this opinion persuasive.  The examiner stated that the Veteran did not snore or have daytime tiredness; however, the Veteran has consistently asserted he has sleep problems to include during active service, and the Veteran has submitted additional lay statements to support his claim.

In light of the evidence that the Veteran complained of sleep problems days after separation from active service, that he was given a sleep test based on those symptoms, and that he was diagnosed with sleep apnea six months after separation from service, the Board concludes that, at the very least, the evidence for and the evidence against the claim are in relative equipoise.  When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  Therefore, the benefit-of-the-doubt will be conferred in his favor and his claim for service connection is granted, subject to the controlling laws and regulations, which govern awards of VA compensation.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for sleep apnea is granted.  



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs