Citation Nr: 1416195 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 10-29 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the March 2014 Information Hearing Presentation, the Veteran's representative asserted that the RO had not yet processed the Veteran's claim for "Primary Snoring Disorder." That issue is accordingly referred to the RO for the appropriate development. FINDING OF FACT The competent and credible evidence establishes that the Veteran's obstructive sleep apnea is related to her military service. CONCLUSION OF LAW Obstructive sleep apnea was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The service treatment records include two August 1986 record showing the Veteran's report of excessive snoring and shortness of breath while sleeping; one of those records indicated that the Veteran's roommate reported her sounding like she had a respiratory problem when breathing at night, to include snoring loudly and occasionally waking. No sleep study was conducted. On her October 1986 separation Report of Medical History, the Veteran reported shortness of breath and noted that she had consulted with ENT clinic because roommate stated she sounded like she had respiratory problems while sleeping including snoring; the October 1986 service separation examination noted no pulmonary or respiratory diagnoses. After service, the Veteran continued to seek treatment for heavy snoring a daytime somnolence (sleepiness) beginning in November 1988, after which a sleep study was conducted in January 1989 that showed loud snoring, but no evidence of apnea, hypopnea, or oxygen desaturation. However, a February 1989 VA treatment record noted the examining physician's finding that the Veteran's snoring was due to a slight posterior tongue protrusion, redundant oropharyngeal palatal tissue, and/or mild nasal congestion. Later that month, the Veteran again sought treatment for snoring and daytime somnolence, at which time her fiancé reported that her snoring increased when she was lying down, and that she gasped while sleeping. May 1989 and November 1989 records reiterate these complaints; a February 1995 record noted the Veteran's reiteration that her roommate in service had observed her having episodes of raspy breathing while sleeping. The examining VA physician noted that the Veteran's most recent of four sleep studies had shown longer periods of apnea, and a continuous positive airway pressure mask (CPAP) was prescribed. Records dated from October 1995 through June 2011 show ongoing treatment for sleep apnea. At the January 2009 VA examination, the Veteran reported a long history of daytime sleepiness and her military roommate's observations that she stopped breathing while sleeping. The examiner noted that no sleep study was done in service, but a mid-1990s sleep study showed moderate obstructive sleep apnea ameliorated with CPAP; moderate sleep apnea was diagnosed, but no nexus opinion was offered. However, the July 2010 VA examiner reviewed the Veteran's claims file, and reiterated the contents of her in-service and immediate post-service treatment records documenting her complaints of snoring and somnolence. While finding that it was less likely than not that the Veteran's sleep apnea was related to complaints of respiratory problems in service, the examiner noted that it was far from a simple opinion - the noisy breathing and nasal congestion documented while on active duty suggest a contribution to her narrowed airway and hence a possible predisposing factor to her current sleep apnea condition. However another contributing factor is the weight gain that is also clearly documented. Since she was noted NOT to have sleep apnea on sleep study in 1989 and since her symptoms of snoring and noisy breathing are documented to have improved with treatment while she was on active duty I cannot argue that the sleep apnea was present while she was on active duty. The most I can argue is that the symptoms of snoring and noisy nocturnal breathing reflect a tendency for a narrowed airway that is one predisposing factor but not THE causative factor of her sleep apnea. The Veteran has repeatedly and credibly reported others' observations that she snored and appeared to have breathing abnormalities while sleeping since service, and that she had experienced daytime sleepiness since service. Thus, her symptoms have been constant and consistent since her military service, even though the sleep study completed in January 1989 did not result in a sleep apnea diagnosis. Further, the July 2010 VA examiner's opinion clearly establishes that the Veteran's snoring and abnormal breathing while sleeping were the result of a narrowed airway - a similar finding to that of the February 1989 VA clinician's. Ultimately, although a diagnosis of sleep apnea was not made until the post-service period, the Board finds that the evidence as a whole establishes that the disease process which ultimately led to the 1995 sleep apnea diagnosis began during active duty service. On this basis, service connection is warranted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs