Citation Nr: 1645045 Decision Date: 11/23/16 Archive Date: 12/09/16 DOCKET NO. 09-42 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected gastroesophageal reflux disease (GERD) with secondary esophagitis. 2. Entitlement to service connection for erectile dysfunction, claimed as a urology condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1987 to February 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge regarding his claim for entitlement for service connection for sleep apnea. A transcript of that hearing is of record. The Board notes that since the RO last reviewed this matter in a December 2015 Supplemental Statement of the Case, the Veteran submitted additional evidence and argument in support of his appeal. As the Board is granting the Veteran's appeal for sleep apnea and remanding his claim for erectile dysfunction, there is no prejudice in the Board considering this evidence in the first instance. The issue of entitlement to service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record indicates that the Veteran's obstructive sleep apnea was at least as likely as not incurred during active service. CONCLUSION OF LAW The criteria for establishing service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board is granting entitlement to service connection for sleep apnea, which represents a complete grant of the benefit sought on appeal; thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015). Service connection may be established for 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). Generally, in order to prove service connection, there must be 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). The Veteran contends that his sleep apnea was incurred during his military service. A March 30, 2007 sleep study, VA treatment records, and the December 2015 VA examination report indicate that the Veteran is diagnosed with obstructive sleep apnea. While the Veteran's service treatment records (STR) do not show a diagnosis of or treatment specifically for sleep apnea, they do document sleep disturbances and other symptoms consistent with sleep apnea. An August 21, 2003 STR noted that the Veteran endorsed sleep disturbances. A February 19, 2004 STR noted that the Veteran reported that he was having trouble sleeping. A February 23, 2004 STR noted that the Veteran reported waking up several times per night, but nonetheless felt rested and was not experiencing any interference with his work duties. A March 16, 2004 STR indicated that the Veteran was still experiencing insomnia and but was tolerating his prescribed Elavil, which had been partially effective for relieving his insomnia. An August 11, 2006 STR noted that he reported "sleep pattern concerns." He was assessed with mild insomnia. STRs from August 31, 2004, July 7, 2005, and September 19, 2006 again noted ongoing sleep disturbances and insomnia. A September 25, 2006 STR indicated that the Veteran reported that his sleep difficulties began sometime in 2002 following duties performed as a first responder at the Pentagon on September 11, 2001. He reported that since that time he had experienced persistent insomnia and awoke with choking and smothering sensations. A July 17, 2008 treatment record from Infirmary West Sleep Disorder Center noted that the Veteran had a history of loud snoring, witnessed apnea, and sleep disturbances that began in 2002. On his October 2009 VA Form 9, the Veteran reported that he had experienced sleep problems since approximately 2002. He reported that from that time until his retirement in 2007 he experienced problematic sleep deprivation, apnea, and chronic fatigue. He noted that his initial post-service sleep study at the Pensacola Naval Station had been scheduled while he was still on active duty. He asserted that he would have been diagnosed with sleep apnea during active service had a sleep study been performed during service, but there were no such facilities available while he was stationed abroad in Iwakuni, Japan. A January 2, 2009 VA treatment record noted that the Veteran had severe obstructive sleep apnea and that his sleep was fragmented due to his respiratory event-related arousals. The Veteran was provided a VA sleep apnea examination in December 2015. The examiner noted a diagnosis of obstructive sleep apnea was confirmed via a March 30, 2007 sleep study. The examiner noted that the Veteran was a first responder at the Pentagon on September 11, 2001 and noted the Veteran's belief that his sleep apnea was secondary to his environmental exposure at that time. With regard to the onset of his sleep apnea, the Veteran noted that his symptoms began approximately one year after September 11, 2001 and that his symptoms included snoring, witnessed apnea, fatigue, and day time sleepiness. The Veteran reported that despite his in-service sleep disturbances, he was not provided a sleep study until approximately one month after his separation from service. The examiner stated that there were no objective findings in the Veteran's STRs indicating a diagnosis or treatment for obstructive sleep apnea and no evidence in the medical record indicating that the Veteran's sleep apnea was associated with or caused by the Veteran's service-connected gastrointestinal condition. The examiner acknowledged that the Veteran was diagnosed with sleep apnea shortly after his separation from that military, but noted that a specific etiology for the Veteran's sleep apnea had not been noted and there was no entry in the Veteran's treatment records indicating that it was caused by or related to the Veteran's military. While the examiner noted an absence of nexus evidence regarding the etiology of the Veteran's sleep apnea, the examiner did not render a nexus opinion regarding the relationship, if any, between the Veteran's sleep apnea and his military service. At his May 2016 hearing, the Veteran testified that during service he would awake gasping for air and gagging. He stated that his wife, at that time, complained that he was a constant snorer and frequently woke up "grabbing for air." He stated that these occurrences were so frequent that they eventually slept in separate bedrooms. While not documented in his STRs, the Veteran testified that he was told during service that his sleep disturbances and choking sensations were likely due to sleep apnea, but that a diagnosis could not be confirmed without a sleep study. He further noted that a sleep study was not available in Iwakuni, Japan, his last duty station; therefore, he requested a sleep study immediately after his separation from service. With respect to a nexus between the Veteran's current obstructive sleep apnea and his in-service symptoms, the record does not contain a nexus opinion. Nevertheless, after reviewing all the lay and medical evidence of record the Board finds that it is at least as likely as not that the Veteran's sleep apnea was incurred during active service. As noted above, the Veteran has sleep apnea and there is competent and credible lay evidence that the Veteran had symptoms consistent with sleep apnea during and since active service. See Davidson v. Shinseki, 581 F.3d at 1316 (noting that the absence of a "valid medical opinion" is not an absolute bar to service connection); Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptoms). See also 38 U.S.C. § 1154(a) (West 2014) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Specifically, the Board finds that the Veteran's reports of in-service sleep apnea symptoms are credible and are consistent with and corroborated by the September 25, 2006 STR indicating that he experienced persistent insomnia and awoke with a choking and smothering sensation. Additionally, while sleep apnea is not a chronic condition subject to presumptive service connection, the Board finds it probative that a diagnosis of sleep apnea was confirmed via a March 30, 2007 sleep study, which was conducted approximately a month after his separation from service. As such, the Board finds that the Veteran's in-service symptoms were at least as likely as not attributable to undiagnosed sleep apnea. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the Veteran's obstructive sleep apnea had its onset during active duty. As such, service connection for obstructive sleep apnea is warranted. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMAND Regarding the Veteran's claim for erectile dysfunction, the Board notes that the September 2009 rating decision denied service connection for erectile dysfunction. In November 2009, the Veteran filed a timely notice of disagreement with that decision. To date, the AOJ has not issued a statement of the case (SOC) addressing this issue. Accordingly, remand of this claim for issuance of an SOC is warranted. See Manlincon v. West, 12 Vet. App. 238 (1999). After the AOJ has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the claim for entitlement to service connection for erectile dysfunction, so that the Veteran and his representative may have the opportunity to complete an appeal on these issues (if he so desires) by filing a timely substantive appeal. The issues should only be returned to the Board if a timely substantive appeal is filed. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs