Citation Nr: 1341941 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 09-23 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from June 1978 to June 1991 with an additional 14 years of prior active service. He retired with more than 25 years of service. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2007 rating decision. In August 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board has reviewed the Veteran's physical claims file, the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all evidence. FINDING OF FACT The evidence reasonably establishes that the Veteran's diagnosed sleep apnea had its onset during his extensive period of military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b)(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The Board herein grants in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist as it pertains to this issue, such error was harmless and will not be discussed. Law and Analysis The Veteran essentially contends that he had the onset of sleep apnea during service and described its initial manifestations as loud snoring, fatigue, and episodes of apnea. A lay statement, submitted by the Veteran's spouse describes his longstanding history of loud snoring, frequent awakenings, pauses in breathing, and fatigue. See lay statement from the Veteran's spouse dated in January 2008. The Veteran has also testified that he first sought treatment during the 1980s for trouble sleeping, but was told there was no test or treatment for it. He later sought treatment when he retired from the military in 1991 and again was told by a doctor there was no treatment for his problem sleeping. He finally underwent a sleep study in 2004 and was given a C-PAP machine. See August 2013 hearing transcript (Tr.). Service treatment records do not document complaints or findings suggestive of sleep apnea prior to the Veteran's retirement from service in 1991. However these records do show that, at his retirement physical in 1991, he indicated a history of trouble sleeping. The post-service evidentiary record in this case shows that sleep apnea was first diagnosed in July 2004, 13 years after the Veteran's retirement from service. He was started on CPAP treatment with successful results. Also of record is a statement from the Veteran's private physician who noted that the Veteran was diagnosed with sleep apnea in July 2004. He had been using a C-PAP since that time and had noticed increased energy and less daytime sleepiness. He was also no longer observed to have snoring or sleep apnea at night. The physician noted that the Veteran was first concerned about sleep apnea in 1983 while he was still on active duty. She also noted that the Veteran was not obese and believed that his sleep apnea condition was due to his basic anatomic configuration of his mandible, throat, palate, the length of his neck, and the angle involved with the tongue and nasopharynx. This basic anatomic configuration had been the same since he was an adult, and nothing had changed or worsened in 2004. She referred again to the Veteran's claim that he probably had sleep apnea as early as 1983 or sooner and concluded that this was mostly likely the case. The physician explained that the Veteran's weight at the time of the sleep study of 245 pounds was probably not much different than his weight during his active years. She supported his claim that his sleep apnea occurred while he was on active duty. See Medical Opinion from L.R. March, M.D. dated January 11, 2008. In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although sleep apnea was not diagnosed until 13 years after the Veteran retirement from service, the Board is satisfied that it cannot be clearly disassociated from his military service. The January 2008 private opinion, indicating that the Veteran's sleep apnea is related to service, to be both probative and persuasive. That opinion was based on a thorough examination of Veteran, his history of symptoms, and was supported by a detailed rationale. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Indeed, the private physician pointed to several factors in the record, which supported her conclusion that the initial onset of the Veteran's sleep apnea occurred during his active service. The opinion has not been questioned by any other medical evidence. Moreover, the Veteran and his spouse have offered competent and credible statements regarding the onset of his sleep apnea during service. They are both competent to testify as to observable symptoms such as snoring, gasping for air and apnea. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). In this case, the Board finds that their lay assertions of the Veteran having manifestations due to the sleep apnea in service are credible and sufficient to establish the onset of symptoms to the time he was serving on active duty. Further, while not outcome determinative, there is probative value to the Veteran's testimony that the symptoms he experienced during service have continued until he sought treatment and was diagnosed with sleep apnea (assertions that he is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). There is no adequate reason to reject the evidence of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Based on the totality of the evidence, the benefit of the doubt is resolved in the Veteran's favor and the Board finds that his sleep apnea was incurred during his military service. Accordingly service connection for sleep apnea is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for sleep apnea is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs