Citation Nr: 1753548 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-03 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a sleep disorder, to include upper airway resistance syndrome and sleep apnea. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to July 1999, and from February 2003 to October 2008, in the United States Air Force. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A Board hearing was scheduled in September 2017, but the Veteran failed to report for it. He has not provided good cause for his failure to appear or requested to reschedule the hearing. Therefore, his hearing request is deemed withdrawn. See C.F.R. § 20.704 (2017). FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's sleep disorder manifested during active service. CONCLUSION OF LAW The criteria for service connection for a sleep disorder, to include upper airway resistance syndrome and sleep apnea, have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Veteran asserts that his sleep disorder manifested during military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran's sleep disorder manifested during service. Although there is evidence against the claim (i.e., November 2012 VA medical opinion), lay statements from the Veteran and his wife along with medical evidence noting complaints of ongoing symptoms since service provide credible evidence that the Veteran's sleep disorder manifested during service. Notably, a lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). The Veteran and his wife have stated that the Veteran has had sleep problems since 2003, including snoring, disrupted breathing, and choking during his sleep. He has also stated that he has had difficulty with fatigue during this time period, but was afraid to seek treatment because it might jeopardize his career as a pilot. The Board notes that this is a case involving a highly-decorated Veteran who served as a fighter pilot with the Air Force for many years. The Board has no reason to doubt his credibility or that of his wife's. Less than a month after discharge from service, an October 2008 private dental record indicates that the Veteran complained of being awakened during the night with sensation of swallowing his tongue. The dentist discussed the possibility of sleep apnea and/or enlarged tonsils and recommended that the Veteran be fitted with a Snore Guard/Hartkins Sleep Apnea appliance. An August 2009 private treatment record indicates the Veteran complained of disrupted sleep, fatigue, and shortness of breath. A note was made to rule out sleep apnea. A December 2009 sleep study indicated that the Veteran did not meet the criteria for sleep apnea because the Apnea-Hypopnea index (AHI) was less than five events per hour. The diagnosis was upper airway resistance syndrome. A January 2010 VA sleep study revealed an AHI of 10.3, indicating moderate sleep apnea. A June 2015 sleep study from Fusion Sleep also indicated that the Veteran had sleep apnea with an AHI of 10.8. On this record, the Board finds the lay statements along with the medical evidence indicate that the Veteran's sleep disorder manifested during his military service. As noted above, a lay person is competent to describe symptoms at the time that support a later diagnosis by a medical professional. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for a sleep disorder, to include upper airway resistance syndrome and sleep apnea, is warranted. See Gilbert, 1 Vet.App. at 55. ORDER Service connection for a sleep disorder, to include upper airway resistance syndrome and sleep apnea is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs