Citation Nr: 18147522 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-24 773 DATE: November 5, 2018 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for arteriosclerotic heart disease is granted. FINDINGS OF FACT 1. The Veteran’s sleep apnea was first manifest during service. 2. The Veteran’s arteriosclerotic heart disease was first manifest during service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for arteriosclerotic heart disease have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1975 to March 1977, from July 1991 to May 1992, and from February 2003 to January 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. In July 2017, the Veteran testified before the undersigned veterans law judge (VLJ) at a videoconference hearing of the Board. A transcript of the hearing is of record. Service Connection Service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including cardiovascular-renal disease, if the chronic disease is shown as such during service or within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea. See Veteran’s claim of September 2011. He has been diagnosed with obstructive sleep apnea. See December 2017 record of Dr. R. T.; VA treatment record of May 2008. His use of a CPAP device dates from 2004. See December 2010 record of Dr. S. C. No sleep symptoms are noted in service treatment records (STRs) for the Veteran’s first two periods of service or in the separation examination reports of February 1977 and April 1992. Service treatment records of 2003 reference heartburn, upset stomach, and chest pain. See STRs of March 2003, September 2003, and December 2003. In May 2012, VA made a formal finding of the unavailability of STRs for the Veteran's third service period. Where records once in the hands of the government are lost, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran, as a layperson, is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). He has testified as to continuous sleep symptoms from service to the present. See transcript of July 2017 Board hearing. Furthermore, a September 2011 statement of L. J., who served with the Veteran, attests to her observation of the Veteran’s snoring loudly, usually having difficulty breathing while sleeping, appearing sluggish and tired during the day, and sometimes dozing off at work. A December 2017 positive nexus opinion of Dr. R. T. is of record. In the doctor’s opinion, it is more likely than not that the Veteran’s obstructive sleep apnea began during active duty service. The stated rationale is that the documented chest pain and GERD during service were associated with obstructive sleep apnea, that the Veteran has been treated with a CPAP device since 2004 after leaving service in 2004, and that the lay statement of L. J. provides a first-hand account of “obvious sleep apnea symptoms” while the Veteran was on active duty. The medical opinion of Dr. R. T., being based on a review of the Veteran’s claims file and supported by a rationale, is entitled to significant weight as to the nexus issue. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Veteran was not scheduled for a VA examination in connection with his sleep apnea claim, and there is no contrary medical opinion of record. With the three elements of Shedden having been met, service connection for a sleep apnea disability is warranted. 2. Entitlement to service connection for heart disability The Veteran seeks service connection for a heart disability. See Veteran’s claim of September 2011. He has been diagnosed with arteriosclerotic heart disease. See December 2017 record of Dr. R. T. The Veteran reported chest pain in an STR of June 1975. His heart was found to be normal on the separation examination reports of February 1977 and April 1992. He reported shortness of breath and pain in the chest for the February 1977 separation examination. An STR of March 2003 also documents a report of chest pain. Angina was diagnosed in December 2003 in a referral for civilian medical care. There are numerous notations of neck and shoulder pain. See, e.g., STR of April 1992. VA was unable to secure complete service treatment records for the period of service from February 2003 to January 2004. See May 2012 VA memorandum. In such circumstances, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A December 2017 positive nexus opinion of Dr. R. T. is of record. In the doctor’s opinion, it is more likely than not that the Veteran’s arteriosclerotic heart disease began during active duty service. The stated rationale, in part, is that during service the Veteran routinely reported chest pain, shoulder pain, acid reflux, and shortness of breath, which are “hallmark symptoms of heart disease”. The medical opinion of Dr. R. T., being based on a review of the Veteran’s claims file and supported by a rationale, is entitled to significant weight as to the nexus issue. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Veteran was not scheduled for a VA examination in connection with his heart disability, and there is no contrary medical opinion of record. (Continued on the next page)   With the three elements of Shedden having been met, service connection for a heart disability is warranted. Under the circumstances, there is no need to consider whether service connection may be presumed for the listed chronic disease of cardiovascular-renal disease. 38 C.F.R. § 3.309(a). Nor is it necessary to analyze whether service connection is warranted on a secondary basis as caused or aggravated by service-connected sleep apnea G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Counsel