Citation Nr: 1339710	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  12-14 401A	)	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.


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from August 1969 to August 1973.  This appeal comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.


FINDING OF FACT

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


CONCLUSION OF LAW

Obstructive 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  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 personal injury or disease incurred in the line of duty in active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also 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).  In addition to service connection on the basis of direct service incurrence, service connection is warranted if a disorder is due to or aggravated by a service-connected disability.  See 38 C.F.R. § 3.310 (2013).

The Veteran served on active duty in the Air Force from August 1969 to August 1973.  A July 1970 treatment report noted the Veteran's complaints of having difficulty sleeping.  The report listed an impression of insomnia.

Subsequent to service discharge, an October 2008 statement from the Veteran's former employer noted that the Veteran was a very poor sleeper, and that he used public transportation so as not to fall asleep while driving to work.

A June 2009 VA examination noted the Veteran's complaints of having difficulty sleeping ever since his having been exposed to combat during service.  Thereafter, a treatment record dated in July 2010, noted the Veteran's complaints of fatigue and snoring.  A September 2010 sleep study revealed a diagnosis of obstructive sleep apnea.  

In a March 2011 letter, M.H., D.O. opined that the Veteran's sleep apnea was related to his military service.  In support of this opinion, Dr. H. noted that the Veteran had initially been diagnosed with a nonspecific sleep disorder in 1970.  Dr. H. also noted that sleep apnea was not fully understood until the late 1970's; that screening for this disorder had only just begun 10 years previously; and that posttraumatic stress disorder had been strongly linked to sleep disorders.  A subsequent letter in October 2010, Dr. H. provided the opinion that it was "possible" that the Veteran's sleep apnea was related to his service-connected PTSD.

A March 2012 VA examiner opined that it was "less likely than not" that the Veteran's sleep apnea was related to his military service.  In support of his opinion, the VA examiner cited the lack of any treatment having been shown between the Veteran's separation from service and his current findings of sleep apnea.  The Board finds that this opinion is of limited, if any probative value, as the examiner failed to incorporate the Veteran's statements of continuous symptoms into the etiological opinion rendered.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) ("Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."). 

After reviewing the evidence of record, the Board finds that the Veteran's current obstructive sleep apnea was incurred during his military service.  In making this determination, the Board finds the testimony before the Board in April 2013 and statements provided by the Veteran and his spouse to be credible.  Specifically, the Veteran reported that his problems with sleeping started in the service, and worsened while he was in Vietnam.  He testified that he would wake up gasping for air and with his heart racing at times during service.  He also testified that he continued to have sleeping problems since that time.  In support of his claim, the Veteran's spouse testified that he snored loudly and would wake up gasping for air beginning in 1972.

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