Citation Nr: 1425317 Decision Date: 06/05/14 Archive Date: 06/16/14 DOCKET NO. 11-09 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include a major depressive disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from August 1993 to December 1993, from July 2004 to February 2005 and from April 2006 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, denying, among other issues, the issues currently on appeal. In addition to denying the issues currently on appeal, the October 2009 rating decision also denied claims of entitlement to service connection for patellofemoral pain syndrome of the left knee, the residuals of a bunionectomy of the right great toe, the residuals of a bunionectomy of the left great toe, a low back injury and pseudofolliculitis barbae. However, the Veteran specifically limited his formal appeal (VA Form 9) to the issues of entitlement to service connection for depression and sleep apnea only. In March 2014, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been prepared and associated with the evidence of record. In addition to the physical claims file, electronic paperless files (Virtual VA and the Veterans Benefits Management System (VBMS)) are also associated with this claim. The Board has reviewed these systems in conjunction with the below opinion. FINDINGS OF FACT 1. VA received notification from the Veteran during his March 2014 hearing of his intent to withdraw his claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include a major depressive disorder. The Board received this request prior to the promulgation of a decision. 2. The Veteran's obstructive sleep apnea manifested during a period of active military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include a major depressive disorder 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. The criteria for establishing entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issue By a rating decision dated October 2009, the RO, in relevant part, denied the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include a major depressive disorder. The Veteran filed a Notice of Disagreement (NOD) in February 2010, which contested this finding. In April 2010, the RO promulgated a Statement of Case (SOC) that continued the holding of the October 2009 rating decision. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a) (2012). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c) (2012). During his March 2014 hearing, the Veteran stated that he wanted to withdraw his claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include a major depressive disorder. Hence, there remains no allegation of error of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. Service Connection for Sleep Apnea Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2013). In this case, the Board is granting 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, such error was harmless and will not be further discussed. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Analysis The Veteran contends that he is entitled to service connection for obstructive sleep apnea. Specifically, he contends that this condition manifested during his third period of active duty from April 2006 to October 2008. Having reviewed the evidence of record, the Board finds that it is at least in equipoise. As such, service connection for sleep apnea is warranted. The Veteran's service treatment records do not reflect a diagnosis of sleep apnea or treatment for any associated symptomatology. However, according to a January 2009 National Guard examination report, the Veteran indicated in his report of medical history that he was presently being diagnosed for sleep apnea. A January 2009 Diagnostic Polysomnography Report from the Georgetown Sleep Center confirms that the Veteran was suffering from mild obstructive sleep apnea syndrome. This diagnosis was confirmed during a September 2009 VA medical examination. No opinion as to etiology was provided however. It was noted that the Veteran reported a one to two year history of snoring and waking up to the sound of his own snoring and choking and gasping for air. The Veteran also testified to being awoken by his snoring while on active duty during his March 2014 hearing. The record also contains a statement from the Veteran's wife dated March 2014. It was noted that she was a registered nurse. According to this statement, the Veteran returned from a period of active duty in 2007 with short periods of time that breathing would be absent with gasping and choking noises. She reported that these symptoms were not present prior to 2007. Having considered the above evidence, the Board finds that service connection for obstructive sleep apnea is warranted. While there is no medical evidence linking the Veteran's in-service symptomatology to his current medical diagnosis, lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Veteran has testified that his symptomatology began during military service and that his own snoring and gasping would wake him up at times during active duty. The Veteran also reported this to a sleep clinic in January 2009 prior to filing a claim for disability benefits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting that there is a strong motive to tell the truth in order to receive proper medical treatment and, thus, statements occurring in the course of such treatment may be afforded greater value than subsequent assertions rendered solely in the interest of seeking VA benefits). Finally, the Veteran's wife has also provided a lengthy statement confirming that she herself first noticed these symptoms during the Veteran's third period of active duty service. Since the Veteran and his spouse are competent to testify to what they have witnessed, and since there is nothing of record to call into question the credibility of the assertions offered by the Veteran and his wife, the Board finds that the requisite nexus evidence linking the Veteran's in-service symptomatology to his currently diagnosed sleep apnea has been provided through their statements. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the claim of service connection for obstructive sleep apnea is warranted. See 38 U.S.C. § 5107(b). The claim must be granted. ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include a major depressive disorder, is dismissed. The claim of entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs