Citation Nr: 1435232 Decision Date: 08/07/14 Archive Date: 08/20/14 DOCKET NO. 13-29 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from January 1979 to December 1981, from December 1986 to March 1994, and from January 2005 to February 2007. The Veteran had additional service in the Reserves. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in June 2014; the hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's sleep apnea began in service. 2. The Veteran's August 2010 left shoulder rotator cuff repair was treatment for his service-connected left shoulder condition and required convalescence of at least one month. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 2. The criteria for a temporary total convalescent rating for the Veteran's left shoulder rotator cuff repair are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Sleep Apnea 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 (West 2002); 38 C.F.R. § 3.303 (2013). 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 determining whether service connection is warranted for a disability, VA is responsible for determining 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran was first diagnosed with obstructive sleep apnea following a March 2010 sleep study. Neither the Veteran's October 1978 nor his October 1986 examinations on his entry into his first two periods of active service note sleep apnea. At his June 2014 Board hearing the Veteran testified that he first began experiencing sleep apnea symptoms, including fatigue, while in service in the 1980s. He reported his symptoms then became milder before increasing in severity around 2005. He reported he would wake up gasping for air and fall asleep if he was inactive during the day. The Veteran said he did not realize the symptoms suggested sleep apnea until later. The Veteran has submitted a number of statements from fellow service members describing the Veteran's loud snoring, waking up gasping, and daytime somnolence. One National Guard member reported he had known the Veteran since approximately 1990 and he had always snored loudly. Another service member reported he first slept near the Veteran in 1996 during a period of active duty for training and the Veteran snored loudly. When they were deployed together in 2005 the service member reported that the Veteran would wake up gasping and was fatigued during the day. Other service members who served with the Veteran during his second period of active service as well as others who had drilled with him since that time reported witnessing similar sleep apnea symptoms. The Board finds his testimony credible that his sleep apnea symptoms began during his active service and notes it is corroborated by the statements of his fellow service members. The Board further finds that he has supplied credible testimony that the sleep apnea symptoms continued unabated since service. Although his service treatment records do not reflect any complaints of sleep apnea symptoms, the Board finds this is not dispositive as to whether the Veteran actually experienced the symptoms during active service. Giving him the benefit of the doubt, the Board finds that he is entitled to service connection for sleep apnea. Shoulder The Veteran is service-connected for degenerative joint disease of the left shoulder. He contends he is entitled to a temporary total rating for convalescence from August 2010 rotator cuff repair surgery. The Veteran argues that although the RO termed his original service-connected disability as degenerative joint disease, the now-repaired rotator cuff tear was part and parcel of the service-connected injury. A temporary total rating may be assigned pursuant to 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. A total rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. This temporary total rating will continue for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release, and an extension of 1, 2, or 3 months beyond the initial 3 months may be made. 38 C.F.R. § 4.30(b) . In June 2010, the Veteran was referred to a private physician by the VA due to his shoulder pain that had been present since service. A note by the Veteran's private physician explains that the degenerative joint disease in the Veteran's shoulder alone does not explain the degree of disability and weakness that the Veteran had. However, he stated that it is explained by the rotator cuff tear that was discovered on a 2010 MRI. The physician stated that he believed the rotator cuff tear was part of the service connected injury. The Board notes that the November 2007 VA examination upon which the RO based its service connection decision did not include an MRI, but only an x-ray that showed degenerative joint disease. The Board finds the private physician's opinion that the rotator cuff tear was part and parcel of the service-connected shoulder injury described by the RO as being degenerative joint disease to be probative. Further, the surgery records indicate that post-surgery the Veteran should wear a sling and swathe immobilization for six weeks followed by night splinting for another six weeks. Therefore, the Board finds that the Veteran is entitled to a temporary total evaluation because of treatment for his service-connected left shoulder condition requiring convalescence. ORDER Service connection for sleep apnea is granted. A temporary total evaluation because of treatment for service-connected left shoulder disability requiring convalescence is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs