Citation Nr: 1754486	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-15 371A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for sleep apnea. 


REPRESENTATION

Veteran represented by:	Thomas P.F. Kiely, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael Duffy, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from July 1997 to January 1998, March 2003 to July 2003, June 2006 to October 2006, May 2008 to June 2008, and April 2009 to August 2009.  

This appeal comes to the Board of Veterans' Appeals (Board) from a November 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before the undersigned Veterans Law Judge at a May 2017 Central Office hearing.  A transcript of the hearing is associated with the evidence of record.


FINDING OF FACT

The evidence shows that the Veteran's sleep apnea is related to his active duty military service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for sleep apnea are met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C. §§ 1110, 1131.  

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

The Board finds that the first Shedden element is met in this case.  The Veteran was diagnosed with sleep apnea in 2008 and continues to experience symptoms of the condition to date.  See, e.g., June 2011 VA examination.  Therefore, the Board finds that the Veteran has a current disability of sleep apnea.

The Board finds that the second Shedden element is met in this case.  The Veteran asserts he began experiencing symptoms of his sleep apnea including snoring and fatigue during his active duty service, which is supported by several lay statements from the Veteran's family members and fellow service members.  A fellow service member submitted a statement that he observed that the Veteran appeared to stop breathing in his sleep during the period of June 2006 to October 2006.  See July 2014 statement of A.P.  Therefore, the Board finds that the Veteran experienced signs and symptoms of sleep apnea during service, which may be related to his current sleep apnea disability.  

The Board finds that the third Shedden element is met in this case.  The record contains positive nexus opinions indicating that the Veteran's sleep apnea is related to his service.  See, e.g., April 2017 opinion by Dr. S.M.  Dr. S.M. supported the opinion with reference to numerous lay statements regarding the Veteran's symptoms, and opined that the symptoms were consistent with the Veteran's sleep apnea.  The record does not contain any negative nexus opinions or other compelling evidence to the contrary (the June 2011 VA examiner did not provide a nexus opinion).  Therefore, the Board concludes that the evidence supports a finding that the Veteran's sleep apnea is related to his active duty military service. 


ORDER

Entitlement to service connection for sleep apnea is granted.





____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs