Citation Nr: 1343232 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-22 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Daniel Smith, Attorney at Law ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran has active service from November 1997 to November 2001. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim on appeal. In March 2013, the Veteran's attorney submitted additional evidence in support of the Veteran's claim. However, such evidence was submitted with a waiver of consideration by the Agency of Original Jurisdiction (AOJ) and the Board will thus consider the evidence in the first instance. FINDING OF FACT The signs and symptoms of the Veteran's current sleep apnea first manifested during active service. CONCLUSION OF LAW Sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2000 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION At the time of the Veteran's December 2009 claim, he asserted entitlement to service connection for sleep apnea on the basis that such was secondary to his service-connected migraine headaches. During the course of the claim, he asserted that such was secondary to his service-connected gastroesophageal reflux disease (GERD). His lay statements, and those of his fellow service members, also assert that he began to experience signs and symptoms of sleep apnea during active service. Subsequent to a number of sleep studies at a VA facility, an undated letter from VA informed the Veteran that he was diagnosed with mild obstructive sleep apnea. The Veteran's service treatment records (STRs) indicate that in September 2000, he complained of insomnia and was treated with prescription medication. At the time of his August 2001 service separation examination and history, he complained of frequent trouble sleeping. In a statement dated in May 2010, one of the Veteran's fellow service members asserted that during service the Veteran complained of having problems getting a good night's sleep and had night sweats, morning headaches, and rapid weight gain. He reported that he saw the Veteran sway back and forth, as if he was unable to keep his head up. Another fellow service member, in May 2010, asserted that during service the Veteran slept during meetings, always seemed tired, and snored. He asserted that the Veteran complained of dry mouth and that on several occasions, he and other shipmates checked on the Veteran during sleep to make sure he was "okay." The Veteran, in a May 2010 statement, reported that he was not obese during the military, but "heavily-built," and examiners used the body mass index (BMI) to determine his fitness for duty. He asserted that he is still experiencing the symptoms, frequent trouble sleeping, of which he complained during service. In a March 2010 statement, a VA examiner opined that the Veteran's current sleep apnea is not due to or aggravated by his service-connected migraine headaches, and reasoned that the medical literature did not support such a conclusion. The examiner provided recitation of the pertinent physiological principles discussed in the medical literature upon which he relied. On VA examination in May 2010, the examiner opined that the Veteran's current sleep apnea was less likely related to service, and reasoned that there was no reference to sleep disturbance, other than insomnia, or sleep apnea being diagnosed, evaluated, or treated during service; and that his sleep apnea is most likely caused or aggravated by his increasing obesity. In a September 2010 statement, a VA examiner opined that the Veteran's current sleep apnea was not caused by his service-connected GERD, and reasoned that medical literature does not support such a conclusion. The examiner provided recitation of the pertinent physiological principles discussed in the medical literature upon which he relied. In a March 2011 statement, one of the Veteran's private physicians reported that the Veteran had sleep problems, with snoring, during service. She noted that the Veteran reported that he was aboard a ship during service for six month intervals and was never able to undergo a complete evaluation for sleep disorders. She reported that the Veteran's symptoms persisted during service and during the subsequent years, have become exacerbated. She opined that the medical literature, including several articles cited specifically, explained the correlation between sleep apnea, headaches, and GERD. She opined that it was well-known that GERD worsens sleep-related quality of life in patients with obstructive sleep apnea, and that soldiers with migraine headaches endured poor sleep quality. She opined that the Veteran had the medical conditions discussed in her statement, including sleep apnea, in the military and was not properly diagnosed. The physician provided recitation of the pertinent physiological principles discussed in the medical literature upon which she relied. In a February 2013 statement, the same physician also opined that the Veteran's symptoms today are the same symptoms he experienced during service. She discussed the relatively new nature of sleep studies, and its availability in years prior; and opined that the Veteran was being penalized for something beyond his control, not undergoing complete evaluation for sleep disorders during service. She discussed again, the Veteran's body habitus and his service-connected disabilities and the effect such have on his sleep apnea. The Board finds no basis upon which to lessen the probative value of the VA or private opinions, all opinions were made with review of the pertinent medical evidence and relied on medical literature and discussed the same. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue. As a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. While the opinions submitted discussed service connection on a direct basis and secondary to service-connected disabilities, the Board finds that direct service connection is the greater benefit, as the Veteran's baseline condition and degree of aggravation need not be considered. The Board thus finds that signs and symptoms of the Veteran's current sleep apnea were manifested during active service and service connection for sleep apnea is granted. ORDER Service connection for sleep apnea is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs