Citation Nr: 1634443	
Decision Date: 09/01/16    Archive Date: 09/09/16

DOCKET NO.  13-21 669	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.

2.  Entitlement to service connection for hypertension, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.

3.  Entitlement to service connection for atrial fibrillation, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.


(Entitlement to service connection for erectile dysfunction is the subject of a separate decision.)


REPRESENTATION

Appellant represented by:	Daniel Krasnegor, Attorney


ATTORNEY FOR THE BOARD

D. M. Donahue Boushehri, Counsel 


INTRODUCTION

The Veteran had active military service from December 1986 to June 1991 which included over four months in Southwest Asia during the Persian Gulf War.  He also had active military service from January 2003 to January 2004.  Finally, he served in the Navy Reserve in the 1990s and 2000s.

The issues come to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The issues were remanded by the Board in April 2012 for additional development to include the issuance of a statement of the case (SOC).  

The issues of entitlement to service connection for hypertension and atrial fibrillation are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, sleep apnea developed as a result of active service.



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CONCLUSION OF LAW

The criteria for the establishment of service connection for sleep apnea are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § §§ 3.102, 3.303, 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).  In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim of entitlement to service connection are moot.

II.  Service Connection

Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a)(2015).  To establish service connection, the following must be shown: (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).  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 in service.  38 C.F.R. § 3.303(d) (2015).

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.  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence of the record.  When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Based on the foregoing, the Board finds that entitlement to service connection for sleep apnea is warranted.  

First, the Veteran has a current diagnosis of sleep apnea.  A private sleep study conducted in September 2008 confirmed a diagnosis of obstructive sleep apnea.  

Second, there are in-service symptoms.  The Veteran testified that he first experienced symptoms of sleep apnea in service, such as excessive snoring, restless sleep, increased headaches in mornings, tired feeling in mid-day, problems concentrating, and slow weight gain.  Veteran is competent to identify his symptoms, and his statements are credible as they are consistent and corroborated by other lay statements of record.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006).  

Third, the evidence supports a finding that the Veteran's sleep apnea was caused by active service.  In a January 2009 statement, W. K., R.N., stated that she considered the Veteran's assertions and reviewed the literature and found that the Veteran's exposure to chemical agents and toxic agents such as oil smoke in service is related to his sleep apnea.  In a May 2009 statement, Dr. D. Y. stated that he reviewed some information regarding exposures in Desert Storm.  He opined that the chemicals and environment the Veteran was exposed to in the Gulf War could certainly be contributing to his sleep apnea.  In an April 2011 letter, the Veteran's private pulmonologist opined that his symptoms could be consistent with Gulf War illness and his sleep apnea, hypertension, and atrial fibrillation is a possible result of his service in the Gulf War.  In a June 2011 addendum, the VA examiner indicated the Veteran's obstructive sleep apnea is an undiagnosable condition with partially explainable etiology.  This is at least as likely as not secondary to Southwest Asia service.  

The Board recognizes that an April 2010 VA examiner determined that the Veteran's sleep apnea diagnosed in 2007 is less likely not related to chemical exposure, and more likely as not related to weight.  In a VA opinion dated in July 2010, the examiner determined that the Veteran's sleep apnea was not related to service as there was no evidence of sleep apnea in service, and sleep apnea was not diagnosed until 4 years after separation from active service. 

The Board finds that the medical evidence is at least in relative equipoise as to whether the Veteran's sleep apnea was caused by service.  Under the benefit of the doubt rule, where there exists 'an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim', the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for sleep apnea is warranted.  38 U.S.C.A. § 5107; 38 U.S.C.A. §3 .102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for sleep apnea is granted. 


REMAND

As service connection for sleep apnea has been granted, the Board finds additional development is necessary to determine whether the Veteran's diagnosed hypertension or atrial fibrillation was caused or aggravated by his service-connected sleep apnea.  The Veteran has also asserted that chemical and toxic environmental exposures while serving in the Gulf War have caused his heart disorders. 

As noted in the opinion above, the Veteran has submitted medical opinions indicating his symptoms could be consistent with Gulf War illness and his hypertension and atrial fibrillation are possibly a result of his service in the Gulf War.  An April 2010 VA examiner considered the Veteran's history, to include toxic environmental exposure during the Gulf War, and determined that the Veteran's hypertension is more likely than not related to weight and age.  A July 2010 VA examiner reviewed the claims file and found that the elevated blood pressures on active duty service were associated with acute illness or injury and do not constitute chronic hypertension.  The additional opinions of record are either speculative or lack adequate rationale.  Furthermore, the VA opinions of record do not include secondary opinions.  As such, the Board finds an additional opinion is necessary to determine whether the Veteran's atrial fibrillation or hypertension were caused or aggravated by service or his now service-connected sleep apnea.  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any additional private medical care providers that have treated him for his hypertension and atrial fibrillation.  Make arrangements to obtain all records that he adequately identifies.  If efforts to obtain any records are unsuccessful notify the Veteran and indicate what further steps VA will make concerning his claim.

2.  Make arrangements to obtain an etiology opinion from a VA physician, preferably a cardiology or heart specialist, regarding the Veteran's hypertension and atrial fibrillation.  An examination is only required if deemed necessary by the examiner. 

The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's diagnosed hypertension and/or atrial fibrillation was (a) caused by active service or (b) caused or aggravated by the Veteran's service-connected sleep apnea.  The examiner must cite relevant evidence from the claims file and indicate how the evidence supports his or her decision.

The electronic claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.  The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles.  If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state.  A complete explanation for such a finding must be provided.

3.  Finally, readjudicate the claims remaining on appeal based on all relevant evidence submitted since the statement of the case.  If either of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

The Veteran  has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs