Citation Nr: 1339089	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  09-37 638	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel


INTRODUCTION

The Veteran had active service from December 1984 to January 1990.

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

In July 2013, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. 

Also on appeal was a claim for service connection for insomnia.  In a November 2012 rating decision, service connection for the claimed insomnia condition was granted and recharacterized as service connection for schizo affective disorder (claimed as insomnia).  As this is a full grant of the benefit sought as to the claim for service connection for insomnia, it is no longer on appeal.  


FINDING OF FACT

The competent evidence of record shows that the Veteran's current obstructive sleep apnea is related to service.  


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for obstructive sleep apnea have been met.  38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to notify and assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2013). 

Given the favorable disposition of the Veteran's claim for service connection for obstructive sleep apnea, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. 

Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309   (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2013). 

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a) ).  In this case, as sleep apnea is not identified as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) are inapplicable.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

After having carefully reviewed the evidence of record, the Board finds that the evidence is at least in equipoise.  The Veteran contends that his obstructive sleep apnea had its onset in service and continued thereafter, specifically related to snoring.  Service treatment records (STRS) are negative for findings, complaints or diagnosis of snoring or sleep apnea.  STRs document that the Veteran had difficulty sleeping and complaints of insomnia.  Post-service records include a November 2008 El Paso Sleep Center record reflecting an impression of severe sleep related respiratory with mild oxygen desaturation.  A July 2009 VA examination reflects that the Veteran was diagnosed with severe obstructive sleep apnea.  Thus, there is evidence of a current disability.  The question then is whether the Veteran's diagnosed obstructive sleep apnea is related to service.  

Initially, the Board notes that snoring is a condition that is capable of lay observation.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  In a July 2009 statement from a fellow service member, he asserted that the Veteran snored during service.   The Veteran also contends that he snored in service and that his snoring continued after discharge, resulting in sleep deficiencies that resulted in his current diagnosis of obstructive sleep apnea.  The Board finds the Veteran's and fellow service member's statements regarding the origin and continuity of snoring symptoms and sleep deficiencies since service to be competent, credible, and probative because the presence of snoring is not a determination "medical in nature" and is therefore capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

Moreover, during the July 2009 VA examination, the VA examiner noted that the Veteran had brought the fellow service member's statement to the examination and that he had reviewed it.  Specifically noting that the fellow service member stated that there were many nights during service that the Veteran did not sleep and when he did he snored so loudly it kept him awake.  The VA examiner stated that if this is an accepted document, referring to the service member's statement, then it was his opinion that the Veteran's sleep apnea is secondary to snoring.   Despite the lack of service treatment records showing that the Veteran suffered with snoring or sleep apnea, since the Board finds that the Veteran's and the fellow service member's statements are competent and credible evidence that the Veteran snored in service, then, consistent with the VA examiner's opinion, the pertinent evidence of record supports the conclusion that the Veteran's currently diagnosed obstructive sleep apnea is related to his active service.   The Board notes that there is no medical evidence or opinion to the contrary.  

Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for chronic sleep apnea is warranted.  38 U.S.C.A. § 5107(b)  (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Service connection for obstructive sleep apnea is granted.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs