Citation Nr: 1803253 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-22 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel INTRODUCTION The Veteran served on active duty in the U. S. Army from June 1989 to September 1989, from February 2001 to October 2001, from October 2003 to February 2005, and from December 2009 to August 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned in August 2017. Since the issuance of the November 2011supplemental statement of the case (SSOC), additional evidence has been received by the Board for which a waiver of initial RO consideration was provided. 38 C.F.R. § 20.1304 (2017). FINDING OF FACT The Veteran's sleep apnea was incurred during active military service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert V. Derwinski, 1 Vet. App. 49 (1991). The Veteran participated in a sleep study in March 2011 that confirmed a diagnosis of sleep apnea. The Veteran credibly testified that, prior to his second deployment to Iraq in 2010; he did not experience any significant or bothersome snoring. During the 2010 deployment, members of his unit brought his disruptive snoring to his attention. He acknowledged denying sleep disturbances on a post deployment health assessment. However, he explained that the form was completed after a mental health briefing and he believed the question was related to nightmares or other emotional or psychological sleep disturbances. During a VA examination in November 2010, the Veteran reported a history of sleep apnea and described symptoms of daytime sleepiness, snoring and sleep disturbances. SFC M. W. stated that he served with the Veteran in the same unit from 2008 until 2014. In a letter submitted on behalf of the Veteran, he explained that on many occasions over the years he was housed with or near the Veteran. At no time, prior to the 2010 deployment, did he recall a snoring issue. However, while in Iraq he remembers the Veteran's "snoring being very loud and somewhat disruptive of the leader's barracks." Additionally, the Veteran's wife observed that he slept restlessly with a great deal of snoring after the 2010 deployment and prior to the sleep study. To summarize, records reflect that the Veteran was not diagnosed with sleep apnea prior to his 2010 service in Iraq. The evidence also shows the Veteran, his spouse, and several other service members deployed with the Veteran all attested to the Veteran exhibiting loud, disruptive snoring during and immediately after the 2010 deployment. Moreover, in November 2010, the Veteran complained of snoring and difficulty sleeping, but was not scheduled for the sleep study confirming a diagnosis of sleep apnea until March 2011. The Board finds it unlikely that the Veteran did not meet the criteria for a diagnosis of sleep apnea prior to March 2011 given the lay statements regarding disruptive snoring during the 2010 deployment and the Veteran's November 2010 complaints regarding sleep apnea. He should not be penalized for the delay in scheduling the sleep study that confirmed his diagnosis of sleep apnea. Given the credible contentions of snoring during the 2010 deployment, the Veteran's credible report of snoring and sleep difficulties within three months of the end of the deployment, and the diagnosis of a sleep apnea within seven months of end of the deployment, the Board finds that after resolving any reasonable benefit of the doubt in favor of the Veteran, it is at least as likely as not the Veteran's sleep apnea was incurred during his active duty service period in 2010. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds entitlement to service connection for sleep apnea is warranted See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). ORDER Service connection for sleep apnea is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs