Citation Nr: 1800297	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  15-41 773	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for sleep apnea.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel



INTRODUCTION

The Veteran had active military service from July 1966 to July 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A transcript of the proceeding is of record.

The Board observes that in January 2007, the Veteran submitted a claim of entitlement to service connection for bilateral hearing loss, which the RO denied in a June 2007 rating decision.  Although notified of the denial and of his appellate rights, the Veteran did not timely perfect an appeal to the Board.  Therefore, with respect to this issue, the RO's January 2007 decision is final.  38 C.F.R. § 20.1103.

Subsequently, in January 2011, the Veteran submitted a request to reopen his claim of entitlement to service connection for bilateral hearing loss and, additionally, filed a service connection claim for tinnitus.  Similarly, although notified of the denial and of his appellate rights, the Veteran did not timely perfect an appeal to the Board.  Therefore, the RO's January 2011 decision is final.  38 C.F.R. § 20.1103.

Finally, in May 2012, the Veteran submitted a request to reopen his service connection claims for bilateral hearing loss and tinnitus.  In a February 2013 rating decision, the RO continued the previous denial of these issues.  The Veteran submitted an NOD in May 2013 and, subsequently, the RO issued a Statement of the Case (SOC) in December 2013.  In his June 2014 substantive appeal (VA Form 9), the Veteran indicated that he was appealing the issues of entitlement to service connection for a bilateral hearing loss disability and tinnitus.

The Board notes that a substantive appeal must be filed within 60 days from the date the RO mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends.  38 C.F.R. §§ 20.200, 20.300, 20.302.  Otherwise, the rating decision becomes final.  See 38 C.F.R. § 20.1103.  The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) has held that the filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board's jurisdiction and, consequently, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  Nonetheless, if a substantive appeal was not timely filed, the Board may decline to exercise jurisdiction over an appeal.  Id.

In this case, the Veteran did not file a request for an extension of the time limit for filing the substantive appeal.  See 38 C.F.R. § 20.303.  Furthermore, since issuing the December 2013 SOC, the RO has not treated the claim as having been timely appealed, nor has it certified the issue to the Board.  See Percy, 23 Vet. App. at 45.  As the substantive appeal was not received within 60 days from the date the RO mailed the Veteran the SOC, or within the remainder of the one-year period from the February 2013 date of mailing the rating decision, the Board finds that the Veteran's June 2014 substantive appeal was untimely received.  Accordingly, the Board does not have jurisdiction over the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability and tinnitus.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's sleep apnea had its onset during his active military service.


CONCLUSION OF LAW

The criteria for service connection for sleep apnea have been met.  38 U.S.C. § 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  In this case, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

II.  Legal Criteria for Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service.  38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary.  Id.

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b).

Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, 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. § 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, the benefit of the doubt is afforded to the claimant.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

III.  Service Connection for Sleep Apnea

The Veteran seeks service connection for sleep apnea, which he contends began during service.  In September 2015, Dr. C.S., a private sleep medicine specialist, submitted a medical opinion confirming the Veteran's current diagnosis of sleep apnea.  Subsequently, Dr. C.S. opined that it is much more likely than not that the Veteran had undiagnosed and untreated sleep apnea during his active military service.  In doing so, Dr. C.S. reviewed the relevant medical history, including a June 2008 sleep study, and concluded that the evidence of record reflects that the Veteran developed medical conditions associated with untreated obstructive sleep apnea during service (i.e. poor sleep quality, fatigue, snoring, and headaches).

Here, the Veteran has diagnosed sleep apnea and his private physician has provided credible, probative medical evidence that the Veteran's disability had its onset during service.  Given the favorable nexus evidence of record, the Board finds that the evidence of record supports the establishment of service connection for sleep apnea on a direct basis.  Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim.  However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, at worst, evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim).  Therefore, in this case, the Veteran is entitled to service connection for sleep apnea.  See 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for sleep apnea is granted.



____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs