Citation Nr: 1753923	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  13-34 321 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for sleep apnea, claimed as sleep apnea hypopnea syndrome with hypoxemia.  


REPRESENTATION

Veteran represented by:	John V. Tucker, Attorney at Law


ATTORNEY FOR THE BOARD

Samantha A. Prinsen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1976 to August 1988.
This matter is before the Board of Veterans' Appeal (Board) on appeal of a January 2010 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs.   

In November 2013, the Veteran requested a hearing before a Veterans Law Judge at his local VA office, but in October 2017, he withdrew his hearing request.

By way of procedural background, the Veteran requested a 60 day extension to file his substantive appeal (VA Form 9), which was granted.  However, the record does not reflect that the VA Form 9 was filed.  The record does reveals that the RO certified the appeal.  In some instances, the RO actions may operate as a waiver of the time requirements for filing a substantive appeal.  Percy v. Shinseki, 23 Vet. App. 37 (2009); see also Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003)(holding that a claimant's failure to file a timely substantive appeal from an RO decision does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction unless there was also an indication that the RO closed the appeal pursuant to 38 C.F.R. § 19.32).  Thus, the Board will proceed with the Veteran's sleep apnea claim.


FINDING OF FACT

Resolving all doubt in the Veteran's favor, sleep apnea is etiologically related to the Veteran's period of active service.    


CONCLUSION OF LAW

The criteria for service connection for sleep apnea have been met.  38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  In light of the favorable decision herein as to the issue on appeal the Board finds that any deficiencies in the VA's duties to notify and assist were not prejudicial to the Veteran.  

II.  Service Connection 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  "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. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

In making all determinations, the Board must fully consider the lay assertions of record.  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

Nothing in the regulatory or statutory provisions require both medical and competent lay evidence; rather, competent lay evidence can be sufficient in and of itself.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007)   

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran contends he is entitled to service connection for sleep apnea.  The Veteran stated that he did not complain or seek treatment during service because his symptoms were "nothing out of the norm" for him.  The Veteran indicated he had constant fatigue during his military service and knew he snored loudly, but did not realize he had a problem until his wife informed him that she observed that he had the symptoms of sleep apnea.  See the November 2010 notice of disagreement (NOD).  

The medical evidence of record establishes that the Veteran has a current disability of sleep apnea.  The Veteran underwent a split night polysomnography study in 2009 that found severe obstructive sleep apnea hypopnea syndrome with moderate hypoxemia.  

The RO denied the claim based on the conclusion there was not an in-service occurrence.  The Veteran's ex-wife's made a statement that the Veteran snored loudly and had erratic breathing.  The RO explained that because the service treatment records lacked complaints of or treatment for issues related to sleep disturbance there was no objective evidence to support the statement from the Veteran's ex-wife, who was married to him at his time of service.  

After the RO decision, the Veteran submitted another statement from a fellow soldier, who frequently traveled overnight with him.  The soldier also reported that the Veteran snored loudly; additionally he reported that the Veteran had periodic interrupted breathing, and would often jerk when he awoke while gasping for air.  
The Veteran, his ex-wife, and fellow soldier are competent to describe the circumstances surrounding the Veteran's in-service snoring and sleep disturbances, because such actions come to them through their senses and, as such, require only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); See also Buchanan, 451 F.3d at 1335.  The Board finds the statements from the Veteran, his ex-wife and fellow Soldier to be credible.  As such, the preponderance of the evidence establishes an in-service occurrence.  

Furthermore, the Veteran provided a statement from his private doctor.  The doctor noted that he reviewed the Veteran's past medical records and the statements from his ex-wife and fellow soldier.  The doctor opined that it is more likely than not that the Veteran suffered from sleep apnea prior to his discharge from the United States Army based on the description of symptoms in the above mentioned statements.

Given the Board's findings regarding the competency and credibility of the lay evidence above, the Board finds the private doctor's medical opinion deserves considerable probative weight.  

Accordingly, the Board finds the evidence warrants a grant of entitlement to service connection for sleep apnea.        


ORDER

Entitlement to service connection for sleep apnea is granted.  




____________________________________________
KRISTI L. GUNN 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs