Citation Nr: 1632797 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 14-11 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Sean A. Kendall, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and Dr. Bash ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1990 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2016, the Veteran and Dr. Bash testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript is associated with the record on appeal. At such time, the Veteran waived agency of original jurisdiction (AOJ) consideration of the evidence associated with the record after the issuance of the March 2014 statement of the case. 38 C.F.R. § 20.1304(c) (2016). Therefore, the Board may properly consider such evidence. Additionally, in April, May, and June 2016, the Veteran submitted additional evidence in support of his claim. While he did not waive AOJ consideration of such evidence, as his substantive appeal was received in April 2014, a waiver of AOJ consideration is not necessary. See section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. Therefore, the Board may properly consider such evidence. The Board notes that a November 2014 rating decision denied service connection for asthma. Thereafter, the Veteran entered a notice of disagreement as to such decision in May 2015. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the AOJ. As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed sleep apnea is related to his military service. CONCLUSION OF LAW Sleep apnea was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for sleep apnea herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for sleep apnea, which he contends had its onset during service or, in the alternative, is secondary to asthma. With regard to the latter theory of entitlement, as noted in the Introduction, service connection for asthmas has been denied by the RO. While the Veteran is in the process of appealing such denial, the issue is not currently before the Board and, at this time, the Board expresses no opinion as to the outcome of such claim. Rather, as discussed herein, the Board grants service connection for sleep apnea on a direct basis. Consequently, the Board need not reach the question of secondary service connection. As an initial matter, the Board finds that the Veteran has a current diagnosis of sleep apnea. Specifically, in November 2008, he was initially diagnosed with such disorder by a polysomnogram. With regard to the onset of his claimed sleep apnea symptomatology, the Board notes that, while the Veteran's service treatment records show several complaints and treatment of coughing and wheezing, such do not show a diagnosis of sleep apnea. However, the Veteran reports that daytime fatigue and snoring began in service. See, e.g., Board hearing (April 2016). Two of the Veteran's fellow service members and his sister submitted statements testifying to their observations of the Veteran snoring, struggling to breath while sleeping, and experiencing daytime sleepiness during service. See Statements (July 5, 2012; February 27, 2014; June 27, 2015). Additionally, the Veteran reported, and a roommate and his sister confirmed, that he continued to experience daytime fatigue and snoring after separation from service. See, e.g., Statements (July 5, 2012; February 27, 2014). The Veteran, his friends, and sister are competent to testify to the matters they observed on a firsthand basis and the Board has no reason to doubt their credibility. Consequently, the remaining inquiry is whether the Veteran's diagnosed sleep apnea is related to his military service, to include those symptoms described by the Veteran, his friends, and his sister. In this regard, there are conflicting medical opinions of record. In February 2014, the Veteran's sister, a medical assistant with 17 years of experience in internal medicine, who is reportedly familiar with symptoms of sleep apnea, opined that the Veteran has demonstrated symptoms of sleep apnea since service. See Statement (February 27, 2014). In October 2014, a VA examiner opined that the Veteran's current sleep apnea is due to post-service obesity. The examiner explained that obesity is the number one risk factor for sleep apnea and that VA treatment records demonstrate progressive post-service weight gain. The examiner further opined that the reports of snoring and daytime sleepiness/fatigue since service are not specific for, nor diagnostic of, sleep apnea. The examiner explained that these are routine commonplace complaints among the male active duty population and the vast majority of such active duty symptoms are not due to sleep apnea. In April 2016, Dr. Bash opined that the Veteran's sleep apnea was incurred in service. In this regard, he explained that the numerous reports of snoring, daytime sleepiness, and gasping for air during sleep since service support the notion that sleep apnea was incurred in service. In support of such opinion, he cited the aforementioned lay statements as well as medical literature. Dr. Bash further indicated his disagreement with the October 2014 VA examiner's opinion that sleep apnea is due to obesity. First, he explained that the Veteran's sleep apnea symptoms preexisted his post-service weight gain. Second, he explained that the VA examiner erroneously determined that the Veteran is obese because he relied solely on his body mass index (BMI), which is based on height and weight, without regard to lean/fat body mass. Dr. Bash explained that a pinch test, which contemplates lean/fat body mass, shows that the Veteran is not obese. As the Veteran's sister, the October 2014 VA examiner, and Dr. Bash are all medical professionals, each is competent to render a medical opinion on the instant matter. Additionally, each opinion was based upon the Veteran's medical history and contained a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Consequently, the Board finds that the medical opinions are in at least relative equipoise on the question of whether the Veteran's sleep apnea is related to his military service. Furthermore, the Board finds that the Veteran, his friends, and his sister have competently and credibly provided lay evidence regarding the onset and history of his sleep apnea symptomatology, to include snoring and difficulty breathing during military service, as well as a continuity of such symptomatology, which resulted in a confirmed diagnosis of sleep apnea in November 2008. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed sleep apnea is related to his military service. Consequently, service connection for such disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, supra. ORDER Service connection for sleep apnea is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs