Citation Nr: 1639316 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 14-29 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his daughter, and J.K., a friend ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from November 1954 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2016, the Veteran, his daughter and a friend testified at a hearing before the undersigned Veterans Law Judge, held at the VA Central Office in Washington, D.C. A transcript of that hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran has a current diagnosis of obstructive sleep apnea, and the evidence is in relative equipoise on the question of whether the condition is related to service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 113; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Service connection requires competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310 (a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). As concerns disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Then, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is not generally capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Once the evidence has been assembled, it is the responsibility of the Board to evaluate it in its entirety. 38 U.S.C.A. § 7104 (a). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Veteran contends that, while in service, his sleeping patterns were interrupted by the nature of his unpredictable work. He snored frequently and constantly felt exhausted-symptoms the Veteran feels indicated an in-service onset of obstructive sleep apnea, warranting service connection. The evidence of record indicates that the Veteran has a current diagnosis of obstructive sleep apnea, which was confirmed by a sleep study in February 2006. Thus, the current disability requirement for service connection for sleep apnea is satisfied and the remaining inquiry is whether there is a nexus, or link, between the Veteran's obstructive sleep apnea and his military service. On that question, the Board finds that the evidence is in relative equipoise. The Veteran's service treatment records are silent as to complaints of trouble sleeping, or any symptoms of sleep apnea, at any time. In a September 1974 examination, undertaken for purposes of separation from service, the Veteran expressly denied having any trouble sleeping. Post-service private treatment records show the Veteran was diagnosed with obstructive sleep apnea in 2006, and the condition was successfully treated with the nightly use of a CPAP machine. In an August 2010 letter, the Veteran's private physician, Dr. A.G., affirmed the Veteran's diagnosis of obstructive sleep apnea and noted it was of a severe nature. The doctor indicated that it was likely that the Veteran first developed sleep apnea around 1970. As rationale for this conclusion, Dr. A.G. indicated that the Veteran's reported symptoms at that time-loud snoring and daytime fatigue-were consistent with the condition and showed that obstructive sleep apnea was present at that time. As explained below, the Board finds that the statements made by the Veteran and his family as to these symptoms, and their in-service onset, are credible. Therefore, Dr. A.G.'s opinion is afforded great probative weight on the question of etiology, as it has a clear conclusion and supporting data, as well as a reasoned opinion connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also 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"). In letters dated August 2010 and June 2015, the Veteran's adult daughter explained that for her entire life, her father snored loudly and had interrupted breathing and gasped for air when he slept. She described observing the Veteran's daytime fatigue and recounted incidents where he would fall asleep randomly throughout the day. The Veteran's daughter indicated that once the Veteran began treatment for obstructive sleep apnea with Dr. A.G., his symptoms abated. The Veteran's wife also provided a letter in August 2010. She indicated that throughout the Veteran's career in the Air Force, she observed firsthand that he experienced extreme difficulty sleeping at night, to include pauses in his breathing and gasping for air so desperately that he woke himself up. She relayed incidents, as well, in which the Veteran would fall asleep during the day. The record contains a November 2011 letter from MSgt. A.N., who was stationed at an Air Force base with the Veteran in 1965, and worked alongside him for 2 years. A.N. described the hectic sleeping situation at the base, in which they were able to have only a few hours of sleep at night due to their responsibilities performing Air Evacuation duties at all hours. A.N. described his experiences attempting to share sleeping quarters with the Veteran, whose snoring was loud that it kept not only A.N., but also other service members, awake at night. The record also contains a letter from the Veteran's cousin, who affirmed that the Veteran did not snore when the two were growing up together. In a November 2011 letter, the Veteran's younger brother, F.T., described how the Veteran did not snore until he was in the military. Since then, F.T. explained, he had hosted the Veteran at his house numerous times, or spent the night at the Veteran's, and observed the snoring. The record also contains two letters from medical practitioners, describing the history of obstructive sleep apnea as a general medical condition. In a June 2012 letter, R.L., an Army nurse practitioner, described the Veteran's reported in-service symptoms of snoring and daytime somnolence. She indicated that sleep apnea was not a known condition at the time of the Veteran's military service, and that treatment for the condition was first performed in 1981, some 7 years after the Veteran's separation from the Air Force. She noted that sleep apnea was not widely diagnosed or treated for nearly another decade after that. R.L. opined that, had the Veteran (or the medical establishment as a whole) known that sleep apnea was a medical condition, the Veteran would have sought treatment for it. She provided an untitled article describing the evolution of sleep apnea as a diagnosable condition. A July 2012 letter from the Veteran's private doctor, Dr. F.H., also contained in the file, indicated that there would not be a diagnosis of sleep apnea in the Veteran's service treatment records, as the condition was unknown at the time of the Veteran's military service. However, the Board notes that neither of the medical practitioners offered an opinion as to the etiology of the Veteran's sleep apnea in their respective letters, and so they can be afforded no probative weight on the question of nexus. In June 2014, the Veteran's file was provided to a VA examiner, who authored an opinion as to the etiology of the Veteran's obstructive sleep apnea. After review of the Veteran's file, the VA examiner concluded that it was less likely than not that sleep apnea was incurred in, or caused by, the Veteran's military service. As rationale, the examiner noted that the Veteran's sleep apnea was diagnosed after service, and that it is not a condition which can be identified simply by snoring and daytime tiredness. He cited a study which described risk factors for sleep apnea, to include a genetic predisposition, obesity, a large neck, smoking, alcohol consumption and the use of medication. The examiner concluded that there is no event or exposure in military service which could cause sleep apnea. The Board finds that the June 2014 opinion has clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; see also Stefl, supra. At the July 2016 hearing, the Veteran testified as to the in-service symptoms he experienced. In addition, his daughter testified further as to the symptoms she observed while the Veteran was in service. This included her description of the Veteran's choking while sleeping, snoring, and always being tired during the day. In a July 2016 statement, the Veteran summarized the evidence which had been submitted up to that point and reiterated his contention that his sleep apnea had an in-service onset. In this case, the Board finds that the lay statements of record to be credible. Specifically, those provided by the Veteran, his wife, his brother, his daughter and A.N. are consistent, and consistent with other evidence of record. The Veteran and his family and friends are competent to describe observable symptoms such as the Veteran not sleeping through the night, or not breathing properly, and the Veteran is certainly competent to describe feeling tired during the day. See Layno, supra. On the question of etiology, the record contains one competent opinion indicating that the Veteran's obstructive sleep apnea was caused by or is the result of his service, and one competent, seemingly equally probative opinion indicating that the Veteran's obstructive sleep apnea was not related to his service. Additionally, there are ample, credible lay statements of record which indicate that the Veteran's disability had its onset in service. The Board observes that, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," 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). Therefore, as the medical opinion evidence on the question of nexus between obstructive sleep apnea and service is, essentially, in relative equipoise, and in light of the credible lay statements of record, the Board finds that the evidence in this case, collectively, indicates that it is at least as likely as not that the Veteran's current obstructive sleep apnea was incurred as the result of his military service. Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board thus concludes that the criteria for service connection for obstructive sleep apnea have been met. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs