Citation Nr: 1752237	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-06 948	)	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

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel



INTRODUCTION

The Veteran had active service from March 1966 to March 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The Board notes that the Veteran has perfected an additional and separate appeal with regard to claims of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy as a result of exposure to herbicides. These appeals have not been certified to the Board and are not yet ripe for appellate review; therefore, they will be addressed in a separate decision at a later date.

Although it is unclear whether his August 2015 request for his claims file pursuant to the Freedom of Information Act (FOIA) has been accommodated, there is no prejudice to the Veteran to decide this claim as herein the Board is granting service connection for obstructive sleep apnea, which is a full grant of the benefit sought.


FINDINGS OF FACT

1. The Veteran has currently diagnosed obstructive sleep apnea.

2. The evidence is at least in equipoise as to whether the Veteran's sleep apnea first manifested in service or was otherwise incurred in service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Veteran maintains that his sleep apnea was incurred in service. He contends that he suffers from chronic insomnia, low energy, and daytime sleepiness and that his symptoms began while he was on active duty and have continued to the present. Initially, the Board finds that the Veteran has been diagnosed with obstructive sleep apnea. 

Service treatment records are silent concerning treatment for or diagnosis of sleep apnea. The Veteran's March 1968 service discharge examination reflects he had no trouble sleeping, and he did not report any symptoms associated with sleep apnea. 

The Veteran submitted lay statements in support of his claim for service connection. The first, dated September 2012 from W.W., noted that he was bunkmates with the Veteran for over a year. He reported the Veteran as being a very loud snorer who would get quiet then take a deep breath and begin to snore again. The other statement from J.H. dated September 2012 details his memory of the Veteran as a loud snorer for two years while in active service. 

The evidence also includes a January 2013 statement from Dr. S.G., one of the Veteran's VA treating physicians. Dr. S.G. indicated that he had examined and treated the Veteran for sleep apnea. According to the doctor the Veteran had a long history of snoring, which supported the supposition that sleep apnea was present during active service. At present, the Veteran had a diagnosis of sleep apnea. Based on review of the available record, the doctor opined that it was possible the Veteran had sleep apnea while in service which went undiagnosed. There is no evidence indicating that Dr. S.G. is not competent or credible, and as the opinion is supported by a rationale, it is entitled to probative weight.

The Veteran was afforded a VA examination in January 2014. The examiner confirmed diagnosis of sleep apnea, yet he gave a negative nexus opinion. As rationale, the examiner stated that snoring was not sleep apnea and the length of time between the Veteran's diagnosis of sleep apnea and discharge from active service made it less likely than not that his sleep apnea was related to active service. As the opinion is based on accurate facts and supported by a well-reasoned rationale, the opinion is also entitled to probative weight. Nieves-Rodriguez, 22 Vet. App. at 302-05. 

Private medical and VA medical treatment records consistently reflect the Veteran seeking treatment for sleep apnea.

Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed sleep apnea was incurred in service. Although the January 2014 VA examiner opined that the Veteran's sleep apnea was less likely than not related to active service, Dr. S.G. opined that the Veteran's currently diagnosed sleep apnea was present during service, but went undiagnosed. As both opinions are competent, credible and supported by a reasoned rationale, there is no reason to prefer one opinion over the other. Similarly, the Veteran's comrades are competent to report what they observed of his sleep habits, and they are consistent with each other regarding his snoring and breathing pauses. There is no basis upon which to question their credibility. Moreover, the symptoms manifested in service were ultimately diagnosed as sleep apnea.

When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. The Veteran's claim for service connection for sleep apnea is granted.


ORDER

Entitlement to service connection for obstructive sleep apnea is granted. 



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs