Citation Nr: 1337746	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  11-21 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from January 1971 to January 1973, and from October 1990 to May 1991.  This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.


FINDING OF FACT

The Veteran's current sleep apnea originated during his military service.  


CONCLUSION OF LAW

Sleep apnea was incurred in active duty.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for sleep apnea.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).  

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  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 all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).   

The Veteran served on active duty in the Army from January 1971 to January 1973, and from October 1990 to May 1991, including service in Southwest Asia from November 1990 to April 1991.  He also had various periods of service in the Army National Guard.  The Veteran's service treatment records are silent as to any complaints or treatment for sleep apnea.  

A November 2006 private sleep study concluded with a diagnosis of sleep apnea.  Subsequent VA treatment reports indicate that the Veteran was prescribed a continuous positive airway pressure machine (CPAP) to treat this disability.

In November 2008, the Veteran filed his original claim seeking service connection for sleep apnea.  The Veteran contends that he developed sleep apnea while deployed in Saudi Arabia in 1990.  

At his December 2012 hearing before the Board, the Veteran testified that he experienced symptoms of snoring, gasping for air, poor sleep, lethargy, and fatigue while stationed in Saudi Arabia.  He indicated that he would at times fall asleep at meetings and when travelling.  He also indicated that he did not seek treatment for this disability earlier as he did not want it to negatively impact his military career.  The Veteran's spouse testified that the Veteran has snored loudly while sleep since they first started dating in 1991 or 1992.  She also testified that she had begged him for years and years to see a doctor about this condition.

In support of his claim, the Veteran has submitted six statements from fellow soldiers.  Five of these individuals reported having served with the Veteran in support of Operation Desert Shield/Desert Storm and indicated that he had problems with sleeping, including snoring loudly, and episodes of gasping for air, as well as fatigue during this period of service.  They also reported that the Veteran was frequently reluctant to drive trucks as a result of his not having slept well.  

After reviewing the evidence of record, the Board finds that the Veteran's current sleep apnea was incurred during his military service.  In making this determination, the Board finds the testimony and statements provided by the Veteran, his spouse, and others are competent and credible.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  While the absence of any documented inservice treatment or complaints of sleep apnea is to be considered, it is of no greater weight than the positive evidence referenced above.  

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


ORDER

Service connection for obstructive sleep apnea is granted.



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


Department of Veterans Affairs