Citation Nr: 1337301 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-34 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from November 1987 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Salt Lake City, Utah. In July 2013, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims folder. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT It is at least as likely as not that the Veteran's sleep apnea began during active service. CONCLUSION OF LAW With the application of the doctrine of reasonable doubt, the Veteran's sleep apnea was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claim for service connection for sleep apnea. Therefore, no further development is needed with regard to this issue. II. Pertinent Law and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Walker, supra. (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). The condition at issue in this case, sleep apnea, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) does not apply and, as such, the Veteran is not permitted to show continuity of symptomatology since his service as an alternative means of etiologically linking the aforementioned disability to his military service. See Walker, supra. Lay evidence nonetheless can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). III. Analysis In this case, the Veteran maintains that he currently has sleep apnea that is related to his period of active service. Specifically, he states that during service, he started snoring heavily at night. In this regard, while he was stationed in Iraq, his roommate told him that he was snoring extremely loud at night. The Veteran also indicates that during service, he was getting up in the middle of the night and that he felt fatigued during the day. According to the Veteran, approximately six months after his discharge, he underwent a VA evaluation and told the examining physician about his sleep problems. The examiner ordered a sleep study and he was diagnosed with sleep apnea. Therefore, the Veteran contends that his currently diagnosed sleep apnea is related to his period of service, specifically to his in-service sleep problems. The Veteran's service treatment records are negative for any complaints or findings of sleep apnea. However, the Veteran is competent to report that he experienced sleep problems during service such as heavy snoring, waking up in the middle of the night, and feeling fatigued. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau, supra; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Thus, the Board accepts as true that he had sleep problems during service. VA Medical Center (VAMC) outpatient treatment records show that in April 2011, the Veteran underwent an overnight sleep study. The assessment was mild obstructive sleep apnea. The Veteran was prescribed a Continuous Positive Airway Pressure (CPAP) for his sleep apnea. In June 2011, the Veteran filed a claim of entitlement to service connection for sleep apnea. The RO, in a November 2011 rating action, denied the Veteran's claim. The Veteran subsequently filed a timely appeal. In light of the above, the evidence of record shows that in April 2011, only 7 months after the Veteran's discharge, he was diagnosed with sleep apnea. Considering the short period of time between the Veteran's discharge in August 2010 and his initial diagnosis of sleep apnea in April 2011, and also considering the Veteran's in-service sleep problems, including heavy snoring, waking up in the middle of the night, and feeling fatigued, it follows that more likely than not, his sleep apnea began during his period of active service. In other words, it is at least as likely as not that the Veteran's currently diagnosed sleep apnea is related to his in-service sleep problems. Resolving reasonable doubt in favor of the Veteran, service connection for sleep apnea is warranted. 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs