Citation Nr: 1753676	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  11-09 522	)	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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Erin J. Carroll, Associate Counsel


INTRODUCTION

The Veteran served on active duty between August 1983 and June 1986. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Atlanta, Georgia.  Jurisdiction has since been transferred to the St. Petersburg, Florida, RO.

The Veteran testified at a Board hearing at the RO in February 2016.

In May 2017, the Board remanded the claim for further development, to include obtaining an addendum VA medical opinion.  The RO obtained an addendum opinion in June 2017.


FINDINGS OF FACT

The Veteran's sleep apnea is related to his active duty service.  


CONCLUSION OF LAW

The criteria for service connection for sleep apnea have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131. 

Service connection requires evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

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. Charles v. Principi, 16 Vet. App 370, 374 (2002). 

The March 2016 VA examination report noted a diagnosis of sleep apnea since October 1999.  Thus, the first element of direct service connection, a current disability, is met.

At the February 2016 hearing, the Veteran testified that he experienced an injury while playing basketball during service that lead to the development of sleep apnea.  However, he did not seek treatment at that time.  He stated that his roommate noticed that he began to snore at night.  He further reported feeling sluggish and falling asleep sporadically over the years.  Additionally, the Veteran submitted statements from his mother, sister, and in-service roommate, all of which corroborated his reports that he began to snore while on active duty.  These statements are competent and credible.  Therefore, the second element of service connection is met.

Lastly, the record must show a nexus between the claimed in-service injury and the current disorder.

In June 2007, the Veteran submitted a medical opinion, in which Dr. M. W. opined that the Veteran's sleep apnea began during military service.  She based this conclusion on the statements submitted by the Veteran's family, which indicated that he began to snore after entering service.

In December 2010, a VA examiner opined that the Veteran's sleep apnea was less likely than not related to service.  However, the examiner based her opinion on the lack of documentation of complaints or treatment related to sleep apnea during service.  Cf. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting the lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim).  Thus, the opinion is afforded little probative weight.

In a February 2016 private medical opinion, Dr. M. V. noted that the condition of the Veteran's nasal septum was consistent with a prior blunt force injury.  He concluded that the deviated nasal septum "most certainly" occurred due to a prior nasal injury, which resulted in nasal obstruction.  Dr. M. V. based these conclusions on the Veteran's reports of experiencing such an injury during service.  

Most recently, in a June 2017 addendum opinion, the May 2016 VA examiner again opined that the Veteran's sleep apnea was less likely than not related to service, based upon the delayed diagnosis of the condition, as well as the lack of any related symptomatology or treatment during service.  Specifically, she stated that the reported symptom of snoring alone was not sufficient to constitute a diagnosis of sleep apnea; noting that it occurred in 44 percent of adult males.  The examiner also noted the Veteran's significant weight gain after service.  She attributed the sleep apnea to that weight gain.  

The evidence is in at least equipoise. Resolving reasonable doubt in the Veteran's favor, service connection for sleep apnea is warranted. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.   


ORDER

Entitlement to service connection for sleep apnea.


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs