Citation Nr: 1752234	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-03 489	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. Moore, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to June 1999.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an December 2012 rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA).  


FINDINGS OF FACT

Resolving all doubt in the Veteran's favor, the Veteran's sleep apnea is causally related to his active service.


CONCLUSION OF LAW

The criteria to establish entitlement to service connection for sleep apnea have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The medical evidence of record, including the Veteran's private treatment records and November 2012 VA examination, indicates that the Veteran suffers from sleep apnea.  The Veteran's October 1998 Report of Medical History at separation does not indicate that the Veteran suffered from sleep apnea at separation, nor does his Report of Medical Examination at separation, though the Veteran's service treatment records note that he suffered from episodes of chronic fatigue.  The Board notes that the Veteran's service treatment record indicate that the Veteran's chronic fatigue may have been attributed to other ailments, including Guillain-Barre syndrome.  Lay statements provided by individuals who served with the Veteran indicate that the Veteran snored during service. A March 2014 letter provided by the Veteran's spouse indicates that the Veteran began snoring during service, and that he appeared to be "gagging for air as if he [was] out of breath." 

The November 2012 VA examination report confirms the Veteran's sleep apnea, but contains an opinion finding that the Veteran's sleep apnea was not a result of his service.  The opinion contained in this examination report is inadequate because, among other issues, it failed to consider lay statements provided by the Veteran, and seemingly only discussed the Veteran's sleep apnea in relation to his service-connected residuals of Guillain-Barre syndrome.  A March 2014 private medical examination to assess the cause of the Veteran's sleep apnea found that the Veteran's symptoms and ailments indicate that the Veteran suffered from sleep apnea during service.  This opinion was rendered with benefit of the Veteran's private treatment records, service treatment records, and an analysis of lay statements provided by the Veteran and his spouse.  In May 2014, VA provided the Veteran with a new opinion that discussed the cause of his sleep apnea.  A VA examiner again opined that the Veteran's sleep apnea was not related to his service.  This opinion cites lay statements provided by the Veteran's wife and individuals who served with the Veteran, but does not discuss the symptoms and observations reported by these individuals in their respective statements.  Sleep apnea is not a presumptive diagnosis under 38 C.F.R. § 3.309(a), but the Board notes that the evidence of record indicates that the Veteran has suffered from persistent symptoms associated with sleep apnea.  Given the record on appeal, including the Veteran's private examinations and VA examinations, the Board finds that the evidence stands in equipoise.  Resolving reasonable doubt in the Veteran's favor, service connection for sleep apnea is warranted.  See 38 C.F.R. §§ 3.102, 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (setting forth criteria for direct service connection).


ORDER

Entitlement to service connection for sleep apnea is granted.



____________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs