Citation Nr: 1754793	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  14-05 377	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel

INTRODUCTION

The Veteran had active duty from September 1972 to December 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  In September 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.


FINDING OF FACT

Sleep apnea had its onset in service.


CONCLUSION OF LAW

Sleep apnea was incurred during active service.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks service connection for sleep apnea, which he contends had onset in service.  The Veteran, two soldiers with whom he bunked and served, and his in-service girlfriend assert that he began experiencing loud snoring, choking in his sleep, and daytime sleepiness in service.  See Statements (August 1, 2011; August 8, 2011); Board hearing (September 2016).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a).

In this case, the evidence shows that the Veteran has had sleep apnea throughout the appeal period.  See, e.g., VA examinations (May 2012; September 2014).  In February 2016, the Veteran's treating VA physician opined that his current sleep apnea is related to his in-service snoring and choking.  See Dr. Soliai (February 1, 2016).  This opinion is based on the Veteran's relevant medical history and the lay evidence of record; and the Board finds the opinion highly probative.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus, all three elements necessary to establish service connection have been met; and service connection for sleep apnea is warranted.

In reaching this decision, the Board acknowledges that in May 2012 and September 2014, VA examiners opined that the Veteran's current sleep apnea was not incurred in service, but finds that they are inadequate.  In this regard, the May 2012 examiner's opinion impermissibly failed to address the lay evidence of in-service snoring and choking.  See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding that an opinion was inadequate where the examiner ignored lay assertions of an in-service back injury).  Moreover, the September 2104 VA examiner's opinion is improperly predicated on the absence of documented sleep apnea treatment and/or diagnosis.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that an opinion was inadequate where the examiner relied on the absence of contemporaneous medical evidence).

The probative and persuasive evidence supports the Veteran's appeal.  Thus, entitlement to service connection for sleep apnea is granted.



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ORDER

Service connection for sleep apnea is granted.



____________________________________________
C. CRAWFORD
 Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs