Citation Nr: 1343002 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 10-19 513 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bruxism. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from October 1990 to April 1991 and from February 2003 to November 2003. The Veteran had additional duty with the Army Reserve. He served in Iraq. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the North Little Rock, Arkansas, Regional Office (RO) which, in pertinent part, denied service connection for obstructive sleep apnea. In January 2011, the RO denied service connection for bruxism. In December 2012, the Veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. On June 13, 2013, prior to the promulgation of a decision in this appeal, the Veteran expressly withdrew his appeal from the denial of service connection for bruxism. 2. Obstructive sleep apnea originated during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for bruxism have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. Obstructive sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Service Connection for Bruxism Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his authorized representative. 38 U.S.C.A. § 20.204. In a June 2013 written statement, the Veteran stated that he would like to withdraw his claim for bruxism secondary to PTSD from appeal. The Board finds that no allegation of error of fact or law for appellate consideration remains as to that issue. Therefore, it is dismissed. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board grants service connection for obstructive sleep apnea; therefore, no further discussion of VA's duties to notify and to assist is necessary as to that issue. Service Connection The Veteran asserts that service connection for obstructive sleep apnea is warranted as he initially manifested the claimed disorder while in Iraq during active service. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Service connection may 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records do not refer to obstructive sleep apnea. The service documentation does reflect that the Veteran complained of impaired sleep. An August 2008 VA sleep study states that the Veteran was diagnosed with obstructive sleep apnea. At a December 2008 VA examination for compensation purposes, the Veteran reported that his wife had observed his periods of snoring and apnea "since he got off active duty" in 2003. The Veteran was diagnosed with obstructive sleep apnea. The examiner commented that the Veteran had been gaining weight since 2003 and his wife had observed his periods of snoring and apnea prior to that time. The doctor concluded that the Veteran "was having symptoms of sleep apnea before he gained the above weight." In his March 2009 notice of disagreement, the Veteran advanced that his obstructive sleep apnea was initially manifested during active service and his symptoms had been observed by fellow servicemen while he was deployed in Iraq. Undated written statements from the Veteran's service comrades received in April 2009 indicate that they had served with the Veteran in Iraq and had been frequently kept awake by the Veteran's loud snoring. In his May 2009 Appeal to the Board (VA Form 9), the Veteran reiterated that his obstructive sleep apnea had been initially manifested during active service and his symptoms were observed by his fellow soldiers. Most probatively, a soldier who had served with the Veteran wrote in November 2012 that he had witnessed the Veteran snoring loudly with occasional stoppages in breathing; the soldier also noted that the Veteran would awake gasping for air as if someone was choking him. At a June 2012 VA sleep apnea examination, the Veteran presented a history of sleep apnea observed by both his wife and fellow servicemen since approximately 2003. The Veteran was diagnosed with obstructive sleep apnea. The examiner noted that the Veteran exhibited obstructive sleep apnea symptoms on a 1994 Persian Gulf examination. The VA physician opined that the Veteran's obstructive sleep apnea "was a condition that originated long before 2003 as alleged and related to his body habitus but worsened over the years as his weight climbed." An August 2012 addendum to the June 2012 VA sleep apnea examination report states that the examiner's "opinion remains the same as described 6/4/2012 with same logic" and "history reviewed associated with symptomatology onset and associated hypertension render evidence that [obstructive sleep apnea] likely occurred after exit from the military." However, the issue is not whether the Veteran's symptoms of sleep apnea began prior to being activated, as there is no documentation of such. The issue is whether the statements submitted by the Veteran's fellow soldiers establish symptoms of sleep apnea during service and if so whether those statements are credible. The Board finds both factors to have been satisfied. Moreover, it is noted that the VA examiner did not have the benefit of the letter which was submitted in November 2012 which described not just snoring, but also symptoms such as choking and awaking gasping for air. At the December 2012 videoconference hearing before the undersigned Acting Veterans Law Judge, the Veteran testified that the other soldiers sharing his tent in Iraq had witnessed his recurrent episodes of loud snoring and gasping for air. A December 2012 obstructive sleep apnea evaluation from R. Jimmerson, M.D., states that the Veteran was again diagnosed with obstructive sleep apnea. Dr. Jimmerson commented that "in my opinion, after review of records, sleep apnea appears to have occurred in Iraq 2003 and service-connected." The Veteran asserts that he initially manifested obstructive sleep apnea while in Iraq during active service. He submitted multiple written statements from fellow servicemen who had observed his in-service symptoms. VA examiners have variously determined that the Veteran's obstructive sleep apnea was initially manifested "long before 2003;"at some time in 2003; or "after exit from the military." Dr. Jimmerson opined that the disorder "occurred in Iraq 2003." The Board notes that the Veteran had a period of active service from February 2003 to November 2003. Given these facts, the Board finds that the evidence is at the very least in relative equipoise on the issue of service connection for obstructive sleep apnea. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for obstructive sleep apnea is now warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The issue of service connection for bruxism is dismissed. Service connection for obstructive sleep apnea is granted. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs