Citation Nr: 1800992 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-31 710A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from July 1987 to August 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which in pertinent part, denied service connection for low back condition, bilateral knee condition, tinnitus, bilateral hearing loss, and sleep apnea. During the pendency of the appeal, the RO issued a July 2017 rating decision, which granted service connection for lumbosacral strain, left knee osteoarthritis, right knee osteoarthritis, tinnitus, and left ear hearing loss. As this represents a full grant of the benefits sought on appeal, the issues of entitlement to service connection lumbosacral strain, left knee osteoarthritis, right knee osteoarthritis, tinnitus, and left ear hearing loss are not before the Board. AB v. Brown, 6 Vet. App. 35 (1993). A hearing was held before the undersigned in October 2017. A transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, there is competent evidence the Veteran's sleep apnea manifested in service. 2. On October 16, 2017, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal for entitlement to service connection for right ear hearing loss; there is no question of fact or law remaining before the Board in this matter. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Regarding the matter of entitlement to service connection for right ear hearing loss, the criteria for withdrawal of an appeal by the appellant are met; the Board has no further jurisdiction in these matters. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As the Board's decision is completely favorable to the Veteran, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. 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, 492 F.3d at 1376-77. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Sleep Apnea The Veteran contends his in-service sleep symptoms of snoring, halted breathing, gasping for air, and daytime fatigue were manifestations of his later diagnosed sleep apnea. Resolving reasonable doubt in favor of the Veteran, there is competent evidence showing the Veteran's sleep apnea manifested in service. Service treatment records are silent for treatment or diagnosis for sleep apnea. The Veteran, fellow servicemen, and family members submitted lay statements describing his sleep symptoms in service. Six fellow servicemen, who were roommates with the Veteran at various times during service, reported observing heavy snoring, absent breathing, heavy gasps for air, and daytime fatigue. The Veteran's sister reported he did not snore growing up. She reported he occasionally stayed with her during service and she observed loud snoring, halted breathing, and gasping for breath. After separation from service, the Veteran filed a claim for sleep apnea in March 2007. No examination was ordered. In June 2009, Dr. M.E., a private physician, noted the Veteran had symptoms suggestive of obstructive sleep apnea (OSA), including loud snoring, observed pauses in breathing, and daytime somnolence. Epworth sleepiness scale was noted to be 19 out of 24, suggestive of severe sleepiness complaint. A polysomnography was performed. The Veteran was diagnosed with hypersomnia with severe OSA. In July 2011, Dr. M.G. submitted an opinion stating it is more likely than not the Veteran's hypersomnia with severe OSA developed during his military service. Dr. M.G. reviewed service treatment records, the June 2009 polysomnography, and the lay statements submitted by fellow servicemen and family members reporting their observations of the Veteran's sleep symptoms during service. In July 2017, a VA examiner opined it is less likely than not that the Veteran's sleep apnea was incurred in or caused by snoring and weight gain during military service. The examiner's rationale was that there was no objective evidence of these symptoms in service and pointed to inconsistencies in the lay statements. The Board gives great probative weight to the July 2011 private treatment opinion that it is as likely as not the Veteran's hypersomnia with severe OSA developed during his military service. The examiner based his opinion on the multiple lay statements, including fellow servicemen who were roommates with the Veteran during service, observing snoring, halted breathing, gasping for air, and daytime somnolence. The Board finds these statements highly credible. This opinion is consistent with Dr. M.G's 2009 opinion that the Veteran's symptoms were suggestive of OSA, specifically loud snoring, observed pauses in breathing, and daytime somnolence, and his later diagnosis of sleep apnea confirmed by polysomnography. Lay evidence can be competent and sufficient evidence of a diagnosis, or to establish etiology, if the 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). The Board gives limited probative weight to the July 2017 VA examination opinion. The examiner determined the lay statements provided by the Veteran, his fellow servicemen, and family of limited credibility based on inconsistencies. The Board finds the inconsistencies noted by the examiner to be minor, and as stated above, the Board finds the lay statements credible. In summary, the Board finds there is competent and probative evidence showing the Veteran's sleep apnea manifested in service. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right ear hearing loss The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his authorized representative/ attorney and must be in writing (except for appeals withdrawn on the record at a hearing). 38 C.F.R. § 20.204(b). At his October 16, 2017 hearing, the Veteran and his representative withdrew his appeal for entitlement to service connection for right ear hearing loss on the record. Hence, there is no allegation of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal is dismissed. ORDER Service connection for sleep apnea is granted. The appeal seeking entitlement to service connection for right ear hearing loss is dismissed. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs