Citation Nr: 1801727 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-43 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION The Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from December 1958 to December 1962, and on active duty in the U.S. Coast Guard from April 2001 to October 2001. He had addition service in the Reserve. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All records on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed, to include the transcript of the November 2017 Board hearing presided over by the undersigned Veterans Law Judge. 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 There is not clear and unmistakable evidence to rebut the presumption of soundness for sleep apnea for the Veteran's second period of active service; and, the evidence is in equipoise as to whether the Veteran's current obstructive sleep apnea is etiologically related to the second period of active service, and such disability cannot be satisfactorily disassociated from service. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the Veteran's obstructive sleep apnea was incurred in his second period of active service. 38 U.S.C.A. §§ 1111, 1110, 1111, 1132, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Because the Board is granting the claim, discussion concerning compliance with the duties to notify and assist is not necessary. The Veteran essentially contends that his sleep apnea was incurred or aggravated in his second period of active service. As a preliminary matter, the Board notes that the Veteran reported frequent trouble sleeping in his December 1958 Report of Medical History on enlistment into his first period of active service. However, a sleep defect was not noted in the December 1958 Report of Medical Examination on entry into service. His sleep condition is considered sound on entry into this period of service. The service treatment records during this period and in the examination on separation from his first period of active service are negative for medical evidence or lay reports of sleep symptoms. There is no contention by the Veteran, and no evidence to support, that his sleep apnea is related to the first period of active service. Also, as an aside, the Board notes that the evidence does not support a finding that the Veteran's sleep apnea is secondary to a service-connected disability. Indeed, the below evidence shows that the Veteran's sleep apnea caused his hypertension, and not the other way around. Also, as shown in VA examination in September 2015, the VA examiner opined that the Veteran's sleep apnea is not due to or the result of a service-connected disability. The examiner stated that there is no medical evidence to support a causal relationship, specifically showing that hypertension or a cardiac disability caused the Veteran's sleep apnea. Service connection on a secondary basis is not warranted. First, the Board will consider whether the Veteran's sleep apnea preexisted the second period of active service, and whether the Veteran's sleep apnea was aggravated beyond the natural progress of the disease in the second period of active service. A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Generally, to establish entitlement to service connection, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a Veteran is presumed to be in sound condition except for conditions noted when examined and accepted for service. In other words, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). If there is no condition noted on the entrance examination and the disability is found to have manifested in service, the presumption of soundness attaches. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). To rebut the presumption of soundness, there must be clear and unmistakable evidence to demonstrate that the claimed disability preexisted service and that such disability was not aggravated by such service. Id. Here, no sleep defect was noted on entry into the second period of service in any examination report. Thus, the presumption of soundness attaches, and the Veteran's sleep condition on entry into the second period of active duty is presumed sound unless the presumption of soundness is rebutted. In this case, the AOJ determined that the evidence is sufficient to rebut the presumption of soundness for sleep apnea, and therefore the AOJ concluded that this disability preexisted the Veteran's second period of active service. This conclusion was based on a September 2015 VA examination and opinion that stated that the Veteran's sleep apnea clearly and unmistakably preexisted the Veteran's second period of active service. The Board also notes that there is other lay and medical evidence in the record that shows that the Veteran's sleep apnea preexisted his second period of active service. For instance, in a July 2014 letter, Dr. C. opined that the Veteran's sleep disorder began prior to his retirement from active service in December 2001. She noted that there is a strong correlation between hypertension and obstructive sleep apnea, and she noted that the Veteran had hypertension diagnosed in 1999. Dr. C. reviewed and noted the lay statements regarding his snoring in active duty, and she opined that the sleep apnea was present prior to separation in October 2001 and that sleep apnea contributed to his hypertension and cardiac disability. Further, in a probative July 2014 letter, Dr. W. reviewed the medical records and opined that the Veteran's sleep apnea was present prior to separation. Dr. W. stated that sleep apnea contributed to the development of hypertension. The Veteran also submitted a lay statement from his wife, in which she reports that during their entire marriage (dating from prior to the second period of active service), she has noticed that he snores very irregularly and loudly and gasps for air and seemingly stops breathing during sleep. The Veteran's wife is competent to report such observations, and the Board finds that her reports are credible. Based on this evidence, the AOJ concluded that the evidence clearly and unmistakably shows that the Veteran's sleep apnea preexisted his second period of active service. Next, the AOJ found that the Veteran's preexisting sleep apnea was not aggravated in service. In other words, the AOJ found that there was clear and unmistakable evidence to show that there was no lasting worsening of the condition, meaning that there was no increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The AOJ based its conclusion of no aggravation shown in service on the September 2015 VA examination and medical opinion, in which the VA examiner opined that the Veteran's preexisting sleep apnea was clearly and unmistakably not aggravated beyond its natural progression in service. The VA examiner stated that the medical records show no evidence during active duty of any treated condition that is related to the Veteran's obstructive sleep apnea. The Board also acknowledges that the Veteran's October 2001 Report of Medical Examination on separation from his second period of active duty is negative for sleep defects. The Veteran also denied a history of frequent trouble sleeping in the October 2001 Report of Medical History on separation. However, here, the Board finds that there is not clear and unmistakable evidence to show that there was no permanent increase in disability of the Veteran's preexisting obstructive sleep apnea beyond the natural progression of such disability during the Veteran's second period of active service. Notably, the Veteran's sleep symptoms would not be observable during such an examination during waking hours or by the Veteran himself. On the other hand, the Veteran has submitted a lay statement from a serviceman who served with the Veteran during his second period of active duty, in which such servicemen report observing the Veteran loudly snoring and gasping for air when sleeping during service. Such serviceman is competent to report the Veteran's symptoms during sleep, and the Board finds such reports are credible. The Board also notes that the Veteran's April 2004 private sleep study reports respiratory events including snoring significant for the diagnosis, and the diagnosis was sleep apnea syndrome. Based on this medical evidence, and the lay evidence of loud snoring and gasping during service, there is competent and probative evidence that the reported in-service symptoms were manifestations of his obstructive sleep apnea during the second period of active service. Thus, symptomatic manifestations of sleep apnea in the second period of active service are shown. Further, in the probative July 2014 letter from Dr. C., Dr. C. stated that the Veteran's diagnosis of hypertension in the late 1990s should have been a signal as to the severity of his sleep disorder, but many physicians were unaware of the strong correlation between hypertension and obstructive sleep apnea at the time. Dr. C. noted that the misfortune of this situation is that the Veteran must have had undiagnosed sleep apnea prior to December 2001, and that it is now common to have a workup of possible obstructive sleep apnea with patients who present with hypertension and coronary artery disease, as with this Veteran. The Board also notes that the Veteran's wife reported that she noticed that the Veteran's snoring and gasping got worse over time. She reported in her July 2013 letter that around 2003, she became more concerned and that his sleep habits were noticeably worse around this time (which correlated to around the same time as his heart attack). She also reported that he acted very sluggish during daylight hours as well. She stated that she reported these symptoms to the Veteran's primary care doctor in 2003 (while the Veteran was recovering from a heart attack) and that was why the sleep study was first ordered. Based on the above lay and medical evidence, the Board finds that there is room for debate as to whether the Veteran's sleep apnea was aggravated beyond the natural progress of the disease in the second period of active service due to it being untreated and undiagnosed in service. Accordingly, there is not clear and unmistakable evidence to rebut the second prong of the presumption of soundness for sleep apnea. Because the presumption of soundness is not rebutted, the Veteran's sleep condition on entry into his second period of active service is presumed sound, and this case now turns on whether the Veteran's obstructive sleep apnea is at least as likely as not etiologically related to the Veteran's second period of service. Here, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's sleep apnea is etiologically related to his second period of active service. There is competent and probative evidence to support that the Veteran's current sleep apnea is etiologically related to his second period of active service. As discussed above, the competent and probative lay and medical evidence supports a finding that the Veteran's sleep apnea manifested in his second period of active service and continued since service. There is also probative medical evidence to support that the Veteran's sleep apnea did not manifest in the second period of active duty and therefore is not related to service. As noted above, the September 2015 VA examiner opined that the medical records show no evidence during active duty of any treated condition that is related to the Veteran's obstructive sleep apnea. On review, the Board finds that the competent and probative medical evidence is equally for and against the Veteran's contention that his sleep apnea was incurred in his second period of active service. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that the Veteran's current sleep apnea is etiologically related to service and cannot be satisfactorily disassociated from service. For these reasons, the Board concludes that the Veteran's obstructive sleep apnea was incurred in service and service connection for the same is warranted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs