Citation Nr: 1451237	
Decision Date: 11/19/14    Archive Date: 11/26/14

DOCKET NO.  12-20 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for a sleep disorder manifested by obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E.I. Velez, Counsel


INTRODUCTION

The Veteran had active service from March 1983 to December 2008.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. 

In June 2014, the Veteran testified in front of the undersigned at a videoconference hearing.  A transcript of the hearing has been uploaded in the Veteran's Virtual VA file.

The Board has reviewed the Veteran's Virtual VA file and Veteran Benefits Management System (VBMS) file and has considered all the documents contained therein in the decision below.


FINDINGS OF FACT

The preponderance of the evidence of record shows that obstructive sleep apnea had its onset during the Veteran's period of service.


CONCLUSION OF LAW

Obstructive sleep apnea was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran's Claims Assistance Act of 2000 (VCAA), is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date.  The law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims.  First, the VA has a duty to notify the veteran and representative, if represented, of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103 (West 2002).  VA must also inform the claimant which evidence VA will seek to provide and which evidence the claimant is to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  Second, the VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A (West 2002).  In the instant case, the decision below is fully favorable to the Veteran.  As such, any deficiencies with regard to VCAA are harmless and nonprejudicial.  

Legal Criteria and Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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, id. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran contends that he developed a sleep disorder, more specifically sleep apnea, while in service.  The Veteran has reported that his symptoms started while in service in 2003, more noticeably after returning from serving in Pakistan.  

A review of the Veteran's service treatment records revealed no treatment for complaints or diagnoses of any sleep disorder.  Both the Veteran's service entrance examination and exit examination were negative for any indication of a sleep disorder, and he denied any frequent trouble sleeping on separation.

At a September 2009 VA examination the Veteran reported he started having trouble sleeping since 2003 since serving in Pakistan.  The Veteran stated he had not had a sleep study so one was ordered.  An October 2009 sleep study notes a diagnosis of obstructive sleep apnea and hypopnea syndrome.  Thereafter, the VA examiner rendered a diagnosis of sleep apnea, but provided no nexus opinion.

The Veteran has submitted several lay statements in support of his claim.  In a May 2012 statement, Col. (R) M.A.R., a fellow servicemember, stated that he had known the Veteran for 26 years and had shared quarters with the Veteran during several tours of duty.  He stated that he had not witnessed the Veteran snoring during the tours prior to serving in Pakistan, but started observing him snoring since his return from Pakistan.

A May 2012 statement from J.R.C., a fellow servicemember, states that he had served with the Veteran since 2000 and he has observed the Veteran have significant snoring problems.

Also of record is a June 2014 letter from his private physician, Dr. K. Taranto.  In the letter she states that she examined the Veteran and based on his personal history of trouble sleeping and snoring while in service as well as the diagnosis of obstructive sleep apnea confirmed through a sleep study within a year of discharge, it is more likely than not that the Veteran had undiagnosed sleep apnea while on active duty.

Additional VA outpatient treatment records note a diagnosis and show continued treatment for sleep apnea.

In statements and at the videoconference hearing, the Veteran has consistently stated he started experiencing trouble sleeping in service.

Upon reviewing the evidence above, the Board finds that the record of evidence supports a finding of a current disability.  Indeed, sleep studies have indicated a diagnosis of obstructive sleep apnea.  See Shedden, 381 F.3d at 1167; see also Caluza, 7 Vet. App. at 506; Hickson, 12 Vet. App. at 253; 38 C.F.R. § 3.303.  The record of evidence also supports a finding of an in-service injury because the Veteran's competent and credible statements indicate that, he has had trouble sleeping since returning from serving in Pakistan.  Id.  Moreover, lay statements provide competent evidence of the Veteran's development of snoring after his return from service in Pakistan.  Thus, the remaining issue is whether there is evidence of a nexus between the Veteran's current psychiatric disability and military service.  Id. 

The Board finds that the Veteran has provided competent and credible testimony that his sleep problems, later diagnosed as obstructive sleep apnea, have had onset during service and continued since service discharge.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  The Veteran is competent to testify about the onset and continuation of his sleep problems, as such symptom is observable and within the realm of his personal knowledge.  Further, the Veteran is credible, as his statements regarding the onset of his sleep problems as well its continuation has remained consistent throughout the life of the claim. 

In assessing the evidence of record, the Board further observes that the Veteran was diagnosed with obstructive sleep apnea via a sleep study conducted less than a year form separation from service.  Moreover, he has submitted a positive nexus opinion from a private physician.  The opinion is competent and reliable as it is based on an examination of the Veteran, review of pertinent treatment records and consideration of the Veteran's history and reports.  Moreover, it provides a reasoning for the opinion.  Significantly, the opinion stands uncontradicted by any other competent reliable evidence of record. 

Therefore, considering the Veteran's credible and competent statements and testimony, the competent lay statements of record, and the private medical opinion the Board finds that the competent probative evidence supports a finding of service connection for sleep apnea.  Accordingly, the appeal is granted. 


ORDER

Service connection for sleep apnea is granted.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs