Citation Nr: 1807184	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-24 762A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for obstructive sleep apnea (OSA).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Davidoski, Associate Counsel


INTRODUCTION

The Veteran had active military service from November 2001 to June 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). 

In November 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.  


FINDING OF FACT

The Veteran's OSA is etiologically related to his active service.


CONCLUSION OF LAW

The criteria for service connection for OSA have been met.  38 U.S.C §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.103, 3.159 (2017).  Because the Board is granting the benefit sought by the Veteran, any error with respect to VA's duty to notify or assist does not prejudice the claimant and need not be discussed.

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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 (Fed. Cir. 2004).

Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes OSA, when manifested to a compensable degree within a year of separation from service.  38 C.F.R. §§ 3.307, 3.309.  If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303 (b).  

The Veteran is seeking service connection for OSA.  Because OSA is a chronic disease eligible for a presumptive service connection, service connection is warranted if the evidence shows OSA manifested to a compensable degree within a year of service or if a continuity of symptoms after service has been shown.  

VA treatment records show that the Veteran was diagnosed with severe OSA in October 2011, subsequent to undergoing a sleep study, which occurred sometime between July 8, 2011 and August 10, 2011.  On July 8, 2011, one year and eight days after separating from active service, the Veteran had his initial intake visit with the VA Sleep Disorder Clinic.  VA treatment records also show that the Veteran reported having sleep difficulties at an April 2011psychiatric intake visit.  Further, the record shows that the VA Sleep Disorder Clinic called the Veteran on June 20, 2011 to schedule his sleep study, having received a referral from the Veteran's provider.  As such, the Board finds that the Veteran sought treatment within a year of separating service for the sleep symptoms for which he was given a diagnosis of OSA in October 2011.  Moreover, the Veteran and his spouse gave credible testimony in a November 2017 Board hearing that his OSA symptoms were present in service and have continued since service, despite sleep studies performed in service not resulting in an OSA diagnosis.

In light of the foregoing, the Board finds that the Veteran's chronic OSA manifested to a compensable degree within a year of separating from service.  Furthermore, the evidence is at least in equipoise that, despite the lack of an OSA diagnosis in service, the Veteran has shown a continuity of OSA symptomatology since service.  As such, service connection for OSA is warranted.


ORDER

Service connection for OSA is granted.



____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs