Citation Nr: 1751976	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  10-02 838	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for sleep apnea.  


REPRESENTATION

Veteran represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Robinson, Associate Counsel







INTRODUCTION

The Veteran served on active duty from March 1987 to March 2007.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

This case was previously before the Board in July 2013 and July 2014 and remanded for additional development.  In March 2016, the Board denied the claim.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In a May 2017 memorandum decision, the Court vacated the March 2016 denial and remanded the matter for re-adjudication.   
 

FINDING OF FACT

The Veteran's sleep apnea was incurred during active service.  


CONCLUSION OF LAW

The criteria for service connection for sleep apnea have been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is claiming service connection for sleep apnea.  To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

The question for the Board is whether the Veteran's sleep apnea began during active service.  In a February 2008 post-service treatment record (dated less than one year from service discharge), the Veteran related that his wife had witnessed his apneic episodes, and that he had woken himself up after these episodes.  The clinician noted that the Veteran's physical examination and his wife's reliable history of his symptoms certainly suggested sleep apnea.  A June 2008 sleep study confirmed the diagnosis as severe obstructive sleep apnea.  

The September 2013 VA examiner appeared to provide a negative nexus opinion as to whether the Veteran's sleep apnea was incurred during his active service; however, this examiner also opined that the Veteran's sleep apnea was likely related to his in-service weight gain and obesity.  On remand, the same VA examiner provided a supplemental opinion stating that sleep apnea is caused by a developmentally narrow airway with superimposed elevated BMI and/or natural aging.  The examiner emphasized that sleep apnea is formally diagnosed during testing, as opposed to solely through reported symptoms.  

After a careful review of the evidence, the Board finds that it is at least as likely as not that the Veteran's sleep apnea, although not formally diagnosed until after service, was incurred during active service.  In reaching this conclusion, the Board finds the Veteran and his wife's statements describing his apnea symptoms competent, credible, and highly probative of the fact that the Veteran's sleep symptoms started in service and continued through his diagnosis.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The same symptoms reported by the Veteran and his wife formed the basis of the February 2008 clinician's assessment of likely sleep apnea, which was later confirmed through a sleep study.  Because the probative evidence of record is positive as to incurrence of sleep apnea during service, service connection for sleep apnea is warranted.  



ORDER


Service connection for sleep apnea is granted. 



____________________________________________
Donnie R. Hachey
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs