Citation Nr: 1620415 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 13-15 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran's claim is now under the jurisdiction of the RO in St. Paul, Minnesota. The Veteran perfected his appeal with a Substantive Appeal on a VA Form 9 dated in May 2013. The Veteran indicated that he desired a hearing before a Veterans Law Judge of the Board at a local VA office. In May 2015 the Veteran reported that he moved back to Maryland and wanted to change his hearing from a Travel Board hearing to a appearance at the Board in person. Thereafter, in July 2015 the Veteran's employer transferred the Veteran to Denver, Colorado. Subsequent correspondence from the Veteran reveals an address in Colorado. There is no indication that the Veteran no longer desires a hearing before a Veterans Law Judge of the Board. However, given that this decision represents a complete grant of the benefits sought on appeal, there is no prejudice in proceeding with adjudication. FINDING OF FACT The Veteran's sleep apnea is reasonably shown to have been incurred during service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Given the favorable action taken herein with regard to the issue of entitlement to service connection for sleep apnea, no discussion of VA's duties to notify and assist is required. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disabilities 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 order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks entitlement to service connection for sleep apnea. Service treatment records reveal notation of excess weight gain but do not reveal any diagnosis of sleep apnea. Upon examination at separation from service in March 1992, the Veteran was not noted to have any sleep apnea. The Veteran reported a weight gain but no sleep problems on his Report of Medical History at separation. Post-service treatment records reveal that the Veteran was diagnosed with sleep apnea in 2003. In a statement dated in December 2010, the Veteran's spouse reported that she met the Veteran while he was in service and married him shortly prior to his separation from service. She noted that the Veteran has problems at night with snoring and that there have been times when he has stopped breathing. She reported that numerous times she has reached over and tapped him and he would start breathing again. She indicated the he went to a doctor after service and they put him through a sleep study program to determine the severity of his snoring and breathing. A few weeks later he had surgery to try to fix the problem but he still had problems breathing through his nose, stops breathing and snores at night. In a statement dated in March 2011 a friend of the Veteran reported that he knew the Veteran in high school. He reported sleepovers at each others' and friends' houses and did not remember the Veteran snoring. After the Veteran returned from service they attended annual Alumni events, traveled together on ski trips, and visited each other's homes. He noted that on many of the trips they shared a hotel room to save money. The friend stated that the Veteran had one of the worst snoring problems he had ever heard. On every occasion, the friend had to wake the Veteran numerous times a night so that he could get some sleep. The friend reported that about 10 years prior he advised the Veteran to be checked for sleep apnea because the Veteran stopped breathing dozens of times throughout the night. Not only was the Veteran's volume loud but he also made a choking sound before waking and starting to breathe again. In a statement dated in May 2011, the Veteran's private pulmonary specialist reported that a sleep study dated in April 2011 revealed moderate sleep apnea. The Veteran was noted to inform his provider that he had similar symptoms as well as weight gain in service. The provider noted that it is at least as likely as not that he had sleep apnea while in the service. The Veteran was afforded a VA medical examination in July 2011. The examiner noted that the Veteran did not report frequent trouble sleeping at separation from service. The Veteran's increase in weight during service was noted by the examiner. The examiner noted that the sleep study in 2003 revealed issues with the septum and turbinate hypertrophy. In April 2003 the Veteran was diagnosed with enlarged turbinates and "narrow posterior airway." A July 2001 note was reported to show a nasal obstruction, especially when lying down at night that had been going on for years. The Veteran reported that he had complained of snoring for as long as he could recall. His wife had long complained that he stopped breathing in the middle of the night and she would often shake him to start breathing again. The Veteran reported that upon separation examinations in 1990 and 1992 he had a 15 and 40 pound weight gain and he thought that his sleep apnea issues were due to the excessive weight gain. He weighed 225 pounds when he separated from service. The Veteran was noted to be diagnosed with sleep apnea. The examiner rendered the opinion that the Veteran's obstructive sleep apnea was less likely than not due to his weight gain in service or any symptoms, diagnoses, or conditions during military service. The rationale for the opinion was that the Veteran reported that he did not have frequent trouble sleeping at both of the visits in which he reported that he had gained weight. The examiner noted that the Veteran only gained 25 pounds over the period from 1990 to 1992. The examiner reported that there was a large time gap of 11 years between separation from service with any acute weight gain and the Veteran's diagnosis of sleep apnea. The examiner noted that the Veteran had a nasal obstruction. The Veteran was found to have several risk factors for sleep apnea, including obesity, craniofacial or upper airway soft tissue abnormalities, and smoking. In August 2011 the Veteran's private pulmonary physician rendered another opinion. The provider again indicated that the Veteran has sleep apnea. The provider stated that while there is no way to definitively determine when the Veteran's obstructive sleep apnea started, based on the history provided by the Veteran, it is certainly possible that it began while he was in service. The provider opined that it is at least as likely as not that the Veteran had obstructive sleep apnea while in service. Affording the Veteran the benefit of the doubt, sleep apnea was incurred in service. Service treatment records do not reveal any complaint, diagnosis, or treatment for sleep apnea. However, these records reveal excessive weight gain during the period. Post-service treatment records reveal that the Veteran has been diagnosed with sleep apnea. The Veteran has submitted statements indicate that he has had a snoring problem and stopped breathing in his sleep since separation from service. Although a VA medical examiner has rendered the opinion that the Veteran's sleep apnea was not due to or incurred in active service, the Veteran has submitted statements from his private provider, a pulmonary specialist, opining that it is at least as likely as not that the Veteran's sleep apnea was incurred in service. As the evidence is at least in equipoise that the Veteran's sleep apnea was incurred in service, service connection is granted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs