Citation Nr: 1601807 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 12-07 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1999 to January 2006 and from October 2007 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDING OF FACT The evidence of record shows that the Veteran's obstructive sleep apnea had its onset during service. CONCLUSION OF LAW Obstructive sleep apnea was incurred during active duty. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The Veteran seeks service connection for obstructive sleep apnea, which he asserts had its onset during active duty, or alternatively, was caused by exposure to hazardous materials while serving in Iraq. During a September 2015 hearing before the Board, the Veteran testified that during active duty, fellow service members frequently teased him about his loud snoring. He stated that his former wife also told him that he snored loudly and sometimes stopped breathing during the night. The Veteran further testified that he never sought treatment for sleep apnea because he believed his disrupted sleep was just a symptom of posttraumatic stress disorder. However, he stated that when he reported his symptoms to his psychiatrist about six months after discharge, he was referred for a sleep study, which confirmed the diagnosis of sleep apnea. The Veteran's statements are competent evidence as to the factual matters within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record shows that Veteran returned from Iraq in May 2008 and was discharged from active duty in June 2008. The earliest record of post-service medical treatment is a December 2008 VA psychiatric evaluation, which shows that the Veteran reported symptoms of disrupted sleep. After undergoing a VA sleep study in January 2009, the Veteran received a diagnosis of severe obstructive sleep apnea, with hypopnea syndrome. The Veteran was prescribed a continuous airway pressure (CPAP) machine and advised to lose weight. During a December 2011 VA examination, the Veteran reported symptoms of daytime somnolence and disruptive snoring. The examiner noted that the only sleep study the Veteran had was in January 2009, and it confirmed the diagnosis of severe obstructive sleep apnea. When asked if there were any other pertinent physical findings, complications, or conditions related to the Veteran's obstructive sleep apnea, the examiner noted the Veteran's obesity. The examiner indicated that in 2005, the Veteran weighed 320 pounds and was advised on diet management. The examiner further indicated that the Veteran's weight at the time of the examination was 405 pounds, which placed him in the morbidly obese category. The examiner provided the following etiological opinion: The Veteran maintains that his [obstructive sleep apnea] is secondary to environmental exposures experienced during his overseas deployment, more specifically, exposure to JP-8, a jet fuel. He brings material that states that this jet propellant can cause 'dizziness' and sleep disorders; however, this material does not identify [obstructive sleep apnea] . . . . There is no known association between JP-8 and the development of [obstructive sleep apnea], and the Veteran's [obstructive sleep apnea] is most likely secondary to his significant weight gain and development of morbid obesity since leaving active duty. In summary: the Veteran's established diagnosis of [obstructive sleep apnea] was not addressed during service and was not caused by, or the result of a Southwest Asia deployment or other military duty environmental/ hazardous exposures. Nor is the Veteran's [obstructive sleep apnea] part of a multisymptom/system or undiagnosed syndrome secondary to [Southwest] Asia deployment/exposures. Although the December 2011 VA examiner opined that the Veteran's obstructive sleep apnea was not related to service, the examiner based the opinion on the fact that it was "most likely secondary to [the Veteran's] significant weight gain and development of morbid obesity since leaving active duty." However, a review of the record reveals that the Veteran's significant weight gain occurred during the earlier part of his active duty and not during the seven months between discharge and the diagnosis of sleep apnea. Service treatment records show that the Veteran weighed 220 pounds at enlistment. As noted by the VA examiner, the Veteran weighed 320 pounds by 2005. Thus, the Veteran gained 100 pounds during the first six years of active duty. The record shows that when he received the sleep apnea diagnosis in January 2009, the Veteran weighed 329 pounds. As such, the Veteran gained, at most, nine pounds between discharge and the sleep apnea diagnosis. Therefore, the examiner's opinion that the Veteran's significant post-service weight gain caused his obstructive sleep apnea is not supported by the evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on an inaccurate factual premise are not probative). As the Veteran gained over 100 pounds during the first six years of active duty, the VA examiner's opinion that the Veteran's sleep apnea was caused by significant weight gain actually supports a finding that the Veteran's sleep apnea had its onset during service. In summary, the Veteran testified that during active duty, his wife and fellow service members told him that he snored loudly and occasionally stopped breathing during the night. The first time the Veteran received post-service medical treatment was six months after discharge, at which time he reported symptoms of disrupted sleep. A sleep study performed the following month confirmed the diagnosis of severe obstructive sleep apnea. Moreover, the December 2011 VA examiner attributed the Veteran's sleep apnea to his significant weight gain, which occurred during the first six years of active duty. Based on the foregoing, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's obstructive sleep apnea had its onset during service. Accordingly, service connection for obstructive sleep apnea is warranted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs