Citation Nr: 1339704 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-13 284 ) 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 WITNESSES AT HEARING ON APPEAL Veteran and L.B., an observer ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from February 2002 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Salt Lake City, Utah. In September 2012, while sitting at the RO in San Diego, California, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the Veteran submitted additional evidence and waived his right to have it initially considered by the RO. See 38 C.F.R. § 20.1304(c) (2013). 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 to feel fatigued during the day and he felt that he was not getting enough sleep. In his September 2012 videoconference hearing, he noted that he "always felt kind of groggy and lackluster." According to the Veteran, every morning he awoke with a headache and felt like he had a hangover even though he had not been drinking alcohol the previous night. The Veteran reported that in 2008, his girlfriend at the time, who eventually became his wife, told him that he was snoring really loud and would stop breathing in the middle of the night. He stated that he sought medical treatment and was prescribed Ambien. However, the Veteran indicated that even though he was able to sleep through the night when he was taking Ambien, he still felt "lackluster" in the morning. In addition, his girlfriend told him that he was still snoring. According to the Veteran, after his discharge, he continued to experience sleep problems and he sought medical treatment. His physician recommended that he undergo a sleep study in order to determine the underlying reason for his sleep problems. In June 2010, he underwent a sleep study and 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. In support of his claim, the Veteran has submitted a statement from his wife. In the statement, his wife indicated that during the time of 2008 to 2011, she was either dating and/or married to the Veteran and they shared a bed. According to the Veteran's wife, throughout their relationship, the Veteran's snoring progressively worsened. In addition, he would have fits when his breathing would stop. She noted that at her suggestion, the Veteran sought treatment and was prescribed medication. However, she indicated that although the Veteran slept better when he took the medication, his symptoms did not change and, in fact, his snoring and breathing problems worsened. In October 2010, the RO obtained a VA opinion as to whether the Veteran had sleep apnea that was related to his period of service. The examiner stated that the claims file was not available to review but that he had been faxed the pertinent service treatment records and the Veteran's sleep study for review. The examiner noted that in June 2010, just six months after the Veteran's discharge, he underwent a sleep study and was diagnosed with moderate obstructive sleep apnea. The examiner indicated that according to the Veteran's service treatment records, the Veteran was treated for sleep problems from July to October 2008. At that time, the Veteran did not have trouble falling asleep, but he had trouble staying asleep. He was prescribed Ambien which helped him get 6 to 7 hours of quality sleep. The records did not document whether the Veteran had daytime hypersomnolence, pauses in his respirations during the night, and/or snoring. The examiner noted that the Veteran was single while he was in the military and it was usually a bed partner who would report those symptoms. It was unclear as to whether the Veteran had a bed partner or had roommates who could provide witness statements on whether those symptoms were present at that time. The records showed that the Veteran's BMI was over 30 in 2008, which fell in the obese range for his weight. According to the examiner, obesity was a risk for obstructive sleep apnea. Following a review of the pertinent records, the examiner opined that the Veteran's currently diagnosed obstructive sleep apnea was not at least as likely as not (less than 50/50 probability) caused by or related to the sleep problems he had while in service. The examiner stated that the one risk for sleep apnea that the Veteran had during service was his weight. However, there was no documentation in the records regarding the typical symptoms of sleep apnea such as snoring, pauses in his nighttime respirations, and daytime hypersomnolence. The Veteran was single and it was unclear whether he had a bed partner during service or had roommates that could provide witness statements on whether those symptoms were present or not in 2008. According to the examiner, evidence against the diagnosis of obstructive sleep apnea in 2008 was the fact that the medication Ambien improved his sleep. The examiner stated that the medication Ambien did not relieve airway obstruction and therefore would not improve the quality of sleep if the underlying problem was obstructive sleep apnea. The Veteran also gained additional weight after service increasing his BMI to above 32, further putting him at risk for obstructive sleep apnea. Thus, the examiner concluded that because there was no documentation during service of the typical symptoms of sleep apnea, and because the medication Ambien helped improve the Veteran's sleep, which was evidence against a finding of sleep apnea during service, and because there was no evidence of obstructive sleep apnea in the form of a sleep study during service, it was his opinion that the Veteran's currently diagnosed sleep apnea was not related to his period of active service, to include his in-service sleep problems. The October 2010 VA opinion opposes, rather than supports, the Veteran's claim. However, the examiner's opinion was not based on a full factual foundation. One of the bases of the examiner's opinion was that there was no documentation during service of the Veteran experiencing typical symptoms of sleep apnea such as snoring, pauses in his nighttime respirations, and daytime hypersomnolence. Although the Veteran's service treatment records show that the Veteran had problems staying asleep, there was no evidence of sleep apnea symptomatology. Nevertheless, the Board notes that the Veteran is competent to report that he experienced sleep problems during service such as 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). In addition, the Veteran's wife, who was his girlfriend during his period of service, is competent to report that she observed the Veteran experience heavy snoring and pauses in his breathing while he slept. Id. Thus, the Board accepts as true that the Veteran did experience the typical symptoms of sleep apnea such as snoring, pauses in his nighttime respirations, and daytime hypersomnolence, while he was in the military. In October 2010, when the VA examiner was asked to offer his opinion, the Veteran had not yet submitted statements showing that he had the aforementioned symptoms. The examiner actually acknowledged that even though there was no evidence of sleep apnea symptomatology, the Veteran could present witness statements from a bed partner or roommates to show that he had such symptomatology, and that was exactly what the Veteran subsequently did in support of his claim. Therefore, when the examiner concluded that the Veteran did not have any sleep apnea symptomatology during service, such conclusion was not based on a full factual foundation. Another basis of the VA examiner's opinion was that when the Veteran was prescribed Ambien during service, his sleep improved. The examiner stated that the medication Ambien did not relieve airway obstruction and therefore would not improve the quality of sleep if the underlying problem was obstructive sleep apnea. However, the Veteran has reported that although his sleep improved after he started taking Ambien, he still felt fatigued during the day. He is competent to report such symptom. See Barr, supra. In addition, the Veteran's wife has indicated that after the Veteran started taking Ambien, although he slept better, his symptoms did not change and, in fact, his snoring and breathing problems worsened. She is also competent to report such observations. Id. Therefore, the VA examiner's conclusion that the Veteran's sleep improved after he took Ambien was not based on a full factual foundation and does not give an accurate picture of the Veteran's symptoms at that time, given that his symptoms of snoring, breathing problems, and fatigue continued after he took Ambien. In light of the above, the Board finds that the October 2010 VA examiner's opinion that the Veteran's currently diagnosed sleep apnea was not related to his period of active service, to include his in-service sleep problems, was not based on a full factual foundation. Therefore, the Board finds that such opinion lacks credibility, and is therefore without probative value. See Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The evidence of record shows that in June 2010, only 6 months after the Veteran's discharge, he was diagnosed with sleep apnea. Considering the short period of time between the Veteran's discharge in December 2009 and his initial diagnosis of sleep apnea in June 2010, and also considering the Veteran's in-service sleep problems, including heavy snoring, pauses in breathing, 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