Citation Nr: 1752636 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 15-40 010 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUE Entitlement to service connection for sleep apnea, including as due to service-connected gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1983 to December 1983, and from January 1987 to June 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the RO in Reno, Nevada, which denied service connection for sleep apnea. In a May 2011 rating decision, the RO in Reno, Nevada, denied service connection for a bronchitis condition. Subsequently, in December 2013, the Veteran filed a claim for service connection for sleep apnea. During the course of this appeal, the RO has implied that the May 2011 rating decision also constituted a denial of the issue of service connection for sleep apnea. Without commenting on whether the May 2011 rating decision denied service connection for sleep apnea, implicitly or otherwise, the Board finds that VA has received a significant amount of new and material evidence that would warrant reopening the issue of service connection for sleep apnea and proceeding on the merits. In the October 2015 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board as to the issue on appeal. Subsequently, in multiple written communications, the Veteran and representative have asked that the hearing request be withdrawn and that the Board proceed with a decision on the evidence of record. As such, the Board finds there is no hearing request pending at this time as the previous request has been withdrawn. 38 C.F.R. § 20.702(e) (2017). The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. The Veteran is currently diagnosed with sleep apnea. 2. During service the Veteran snored, had excessive daytime sleepiness (hypersomnolence), and was treated for sleep problems. 3. The currently diagnosed sleep apnea is related to the Veteran's in-service sleep disorder symptoms and treatment. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision grants service connection for sleep apnea, which is a total grant of benefits as to the issue on appeal, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for Sleep Apnea Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran asserts that currently diagnosed sleep apnea is either related to sleep disorder symptoms that first manifested in service, or is caused or aggravated by the service-connected GERD. The Veteran reports symptoms during service of snoring, excessive daytime sleepiness (hypersomnolence), and treatment for sleep problems. Initially, the Board finds that the Veteran is currently diagnosed with sleep apnea. Such diagnosis can be found within the reports of a February 2011 VA general medical examination, and an April 2016 VA sleep apnea medical opinion. Next, the Board finds that during service the Veteran snored, had excessive daytime sleepiness (hypersomnolence), and was treated for sleep problems. Service treatment records reflect that in March 1991 the Veteran complained of sleep difficulties. A service physician prescribed the medication Halcion to treat the sleep problems. Per an August 2015 statement, the Veteran conveyed having been sent to the sick bay in March 1991 after once again falling asleep while working in the chaplain's office. In a statement received by VA in October 2013, the Veteran reported falling asleep during classes in service on multiple occasions. Further, the Veteran conveyed regularly snoring, which angered fellow service members who subjected the Veteran to "practical jokes" in retaliation. In a subsequent February 2015 statement, the Veteran advanced not regularly seeking treatment for the sleep problems because, one, the Veteran did not know there could be anything wrong beyond the snoring, and two, the Veteran did not want to risk being seen as a "sick bay commando." In March 2015, VA received lay statements from both a service member that served with the Veteran, and the fellow service member's wife. Per the lay statements, both the service member and spouse explained that during service, from approximately 1990 to 1992, the Veteran would fall asleep in the middle of conversations, with the Veteran snoring very loudly. They also recounted that the Veteran's former spouse would discuss how the Veteran would fall asleep while driving. As the Board finds these lay statements to be both credible and supportive of the Veteran's statements concerning sleep disorder symptoms during service, the Board finds that during service the Veteran snored, had excessive daytime sleepiness (hypersomnolence), and was treated for sleep problems. Finally, after a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed sleep apnea is related to the in-service sleep disorder symptoms and treatment. VA received an October 2014 Sleep Apnea Disability Benefits Questionnaire (DBQ) from the Veteran's VA physician. After reviewing the Veteran's history, at the conclusion of the DBQ the VA physician opined that it was more likely than not that the Veteran's sleep apnea was related to service. The VA physician explained that, even if the Veteran had sought regular treatment for the snoring and excessive daytime sleepiness during service, it was unlikely that the symptoms would have been diagnosed as sleep apnea as, at that time, "sleep apnea was not widely known among medical professionals." Further, the report from a March 2015 VA Medical Center (VAMC) pulmonary note supports the findings of the VA physician in October 2014. Specifically, a VA pulmonary physician opined that, assuming the March 2015 letters from the Veteran's fellow service member and the service member's spouse were accurate, it was more likely than not that the Veteran had sleep apnea dating back to service. The evidence also includes negative VA sleep apnea nexus opinions in February 2011 and April 2016; however, the Board does not find that these negative opinions outweigh the affirmative evidence of record. The Veteran is currently diagnosed with sleep apnea, and during service the Veteran snored, had excessive daytime sleepiness (hypersomnolence), and was treated for sleep problems. Two VA physicians, including the Veteran's treating physician, have opined that the Veteran's currently diagnosed sleep apnea is related to these in-service symptoms. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that sleep apnea was incurred in active service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a secondary or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). ORDER Service connection for sleep apnea is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs