Citation Nr: 1339331 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-24 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for obstructive sleep apnea-hypopnea syndrome. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the Veteran is now represented by the above-named accredited representative. A properly completed VA Form 21-22a is of record. The Board also notes that the Veteran requested a Board videoconference hearing in his June 2010 substantive appeal (VA Form 9). In July 2010, he withdrew that request and requested a hearing before a Decision Review Officer (DRO). The DRO hearing was held in November 2010, and a transcript is of record. In light of the foregoing, the Board finds that there is no outstanding hearing request. 38 C.F.R. § 20.704 (2012). When this case was most recently before the Board in September 2013, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA). In light of the full grant of the benefit sought on appeal as discussed below, the Board finds that providing the Veteran and his representative a copy of the opinion and 60 days to submit further evidence or argument pursuant to 38 C.F.R. §§ 20.901 and 20.903 is not necessary, and to proceed with adjudication of this case is not prejudicial to the Veteran in this regard. A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Obstructive sleep apnea-hypopnea syndrome had its onset during active service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, obstructive sleep apnea-hypopnea syndrome was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, in the decision below, the Board has granted the Veteran's claim of service connection for obstructive sleep apnea-hypopnea syndrome. Therefore, the benefit sought on appeal has been granted in full, and regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is warranted for obstructive sleep apnea-hypopnea syndrome. The Veteran has asserted that he experienced symptoms of sleep apnea during his military service in the late 1990s, which increased in severity over the remainder of his service. In this regard, the Veteran and his former wife have both reported that he had difficulty sleeping and stopped breathing at times during his active duty service. See, e.g., written statements dated November 2009 (Veteran) and September 2010 (wife); November 2010 hearing testimony. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of sleep apnea or sleep-related problems. The earliest record of post-service treatment and complaints is dated in April 2009, at which time the Veteran was seen by his private provider for complaints of fatigue beginning three months earlier. At that time, he reported having loud snoring at night with occasional awaking from apneic spells. Following an examination, a sleep study was recommended to rule out obstructive sleep apnea. In August 2009, the Veteran underwent a private sleep study and was diagnosed with obstructive sleep apnea-hypopnea syndrome with the recommendation of use of a CPAP machine. In December 2012, the Veteran was afforded a VA examination in connection with his claim. The examiner opined that the Veteran's current sleep apnea was less likely than not related to his service. He based this opinion on the observation that the record showed that Veteran did not have problems until 2009. The examiner did not discuss the lay statements attesting to symptomatology in service. In a May 2013 addendum opinion, another VA examiner stated that it was less likely than not that the Veteran's sleep apnea could be objectively service-connected. In so finding, the examiner indicated that the lay evidence was not "objectively confirmatory" for such a diagnosis. He did not provide any further explanation. In November 2013, a VHA physician determined that it was at least as likely as not that the Veteran's reported in-service symptoms (difficulty sleeping and periods where he would stop breathing) were indicative of early manifestations of his current obstructive sleep apnea. In so finding, the physician noted that, although the record did not show any sleep-related symptoms discussed with the treatment provider, sleep questions are not regularly asked to patients in a usual practice. She indicated that there is no specific laboratory abnormality that can be found in the diagnosis of sleep apnea and that it is a chronic condition which can continue unrecognized until a polysomnography confirms the diagnosis. In addition, the physician specifically noted that she relied on evidence of record, as cited earlier in the opinion, and her current understanding of sleep apnea. In regard to the elements of service connection, the record shows that the Veteran has a current diagnosis of sleep apnea. The Board also finds that the Veteran and his former spouse's reports of the onset of his symptoms during service are credible. Furthermore, the record raises a reasonable doubt as to whether the Veteran's sleep apnea had its onset during service. As noted above, the Veteran's service treatment records do not document any complaints, treatment, or diagnosis of sleep apnea or sleep-related problems. However, laypersons are competent to report as to observable symptoms and experiences, such as difficulty sleeping and observed breathing difficulty, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the Veteran and his former spouse to be competent and credible in their statements regarding the Veteran's in-service symptoms and the history of symptomatology, and there is no reason to doubt them other than the lack of contemporaneous medical evidence. See Buchanan, 451 F.3d at 1336-37. In this regard, the reported history has remained consistent through the course of the appeal, and there is no evidence of any intercurrent causes. The November 2013 VHA physician also indicated that questions about sleep are not routinely addressed in a usual medical practice. In addition, the VHA physician incorporated the lay reports of early symptoms into her opinion. A medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Coburn, 19 Vet. App. at 432-33. Here, the Board has found the Veteran and his former spouse's statements of symptomatology during service to be competent and credible, and the opinion provides that these symptoms were early manifestations of the now-diagnosed sleep apnea. Moreover, the VHA physician based her opinion on a review of the claims file, to include the reports of symptoms, accurately characterized the evidence of record, and provided a clear rationale for her conclusion. As such, the Board finds that this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board notes that the December 2012 and May 2013 VA examiners appear to have based their opinions primarily on the lack of objective evidence of sleep apnea in service. They did not clearly address whether the symptoms reported in service could have been early manifestations of his now-diagnosed sleep apnea. As such, the probative value of these opinions is diminished. Based on the foregoing, the Board finds that there is at least an approximate balance of positive and negative evidence related to the Veteran's claim. Specifically, as discussed above, the record raises a reasonable doubt as to whether the Veteran's sleep apnea began during service. Accordingly, resolving all reasonable doubt in the favor of the Veteran, the Board concludes that service connection for obstructive sleep apnea-hypopnea syndrome is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for obstructive sleep apnea-hypopnea syndrome is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs