Citation Nr: 1753953 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-10 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Roya Bahrami, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in March 2017; a transcript of the hearing is of record. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has sleep apnea that had its onset during active military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for sleep apnea. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. In order to establish service connection, generally there must be evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Turning to the pertinent evidence of record, the Veteran's service treatment records (STRs) from his period of active duty from September 1987 to September 1991 do not document treatment for sleep apnea or other sleep disorder. However, the STRs document complaints of shortness of breath and wheezing. Post-service, a December 2007 private respiratory evaluation reflects that the Veteran reported waking up at night, short of breath. A February 2012 VA pulmonary consult indicated that the Veteran woke up 3 to 4 times at night and could not breathe. He woke up at night gasping for breath. He snored at night. His wife noted that he "does hold his breath" at night. The physician suspected that the Veteran had undiagnosed sleep apnea, noting his Epworth was 20. The physician placed a consult for a sleep study. A May 2012 sleep study indicated that the Veteran had sleep apnea. During the March 2017 Board hearing, the Veteran reported that he experienced symptoms of snoring at night and daytime fatigue while serving in Southwest Asia. He also reported that soldiers in his unit would comment on his snoring. See Hearing Transcript, p. 6-7. The Veteran's spouse testified that she noticed his breathing would skip a beat while he was sleeping after he returned home from active duty. He also snored loudly and slept with his mouth open. It seemed like he was holding his breath. Id. at p. 9. Based on the foregoing, the Board finds that service connection for sleep apnea is warranted. With regard to the first element of service connection, the Veteran has a current diagnosis of sleep apnea. Thus, the current disability requirement has been in met in this case. With regard to the second element of service connection, the Board emphasizes that the Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Similarly, the Veteran's spouse is competent to report that she witnessed the Veteran's sleeping patterns and various symptoms after his return from active duty, as they are within the realm of her personal experience and are capable of lay observation. Thus, based on the competent and credible lay statements from the Veteran and his wife describing symptoms of snoring and apneic episodes during and upon his return from service, the Board is persuaded that the Veteran had symptoms of sleep apnea during service. Accordingly, the second element of service connection has also been satisfied. Given that the Board has determined that the Veteran likely suffered from sleep apnea symptoms during service, and has been diagnosed with sleep apnea post service based on similar symptoms, the Board finds that the Veteran's sleep apnea at least as likely as not began during service. In this regard, the Veteran submitted competent and credible lay statements regarding the onset of symptoms associated with sleep apnea. As such, there is persuasive lay evidence demonstrating that the Veteran's symptoms began in service. Although there is no specific medical opinion in support of the claim, the evidence is nonetheless in equipoise as to whether the Veteran's condition had its onset in service. Accordingly, the Board finds that the nexus element has been satisfied. See 38 C.F.R. § 3.303(a) ("service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces"). The Board also notes that the fact that the Veteran complained about difficulty sleeping many years before he first filed a claim for compensation for sleep apnea weighs in support of a finding of service connection based on his lay statements. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). The evidence is thus at least evenly balanced as to whether the Veteran's sleep apnea had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. As the Board is granting the benefit sought in full, discussion of whether VA complied with its duties to notify and assist the Veteran is unnecessary. ORDER Service connection for sleep apnea is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs