Citation Nr: 1807218 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-01 979 ) 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: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record after the issuance of the December 2013 statement of the case. Additionally, the undersigned held the record open for 60 days so that the Veteran could procure and submit additional evidence in support of the claim. Following a February 2017 request from the Veteran's representative for an additional period of 60 days to submit evidence, such evidence was received in April 2017 with a waiver of AOJ consideration. 38 C.F.R. § 20.1304(c) (2017); see also 38 U.S.C. § 7105(e)(1) (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. Therefore, the Board may properly consider such newly received evidence. FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed sleep apnea had its onset in service. CONCLUSION OF LAW 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 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for sleep apnea is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current sleep apnea had its onset during his military service. Specifically, he alleges that such condition began in service following his exposure to burn pits without a respirator when he was tasked with disposing of trash. Additionally, during the Veteran's December 2016 Board hearing, he testified that, prior to service, he did not snore or experience any sleep-apnea-related symptoms, but, while in service, he experienced symptoms of snoring, daytime fatigue, and excessive tiredness during the day. He also indicated that he continued to experience such symptoms to the present day and currently utilized a CPAP. Therefore, he claims that service connection for sleep apnea is warranted. In support of his claim, the Veteran submitted written correspondences from his spouse and fellow soldiers, G.P. and D.F. In this regard, in August 2010 and April 2017 written correspondences, the Veteran's spouse reported that she had been with the Veteran for the previous 24 years (approximately since 1987), and throughout such time, he experienced, as relevant, excessive snoring, which would at times cause him to stop breathing; excessive tiredness; and extreme irritability. She further reported that, while the Veteran was in service, no one ever suggested that he could have sleep apnea. In an August 2010 written correspondence, the Veteran's fellow soldier, G.P., indicated that, while in service from February 1988 to April 1992, he remembered that the Veteran snored nightly, which at times was unbearable, and he quite often took naps during the day. Additionally, in a written correspondence received in July 2011, the Veteran's fellow soldier, D.F., reported that, while in service from April 2000 to November 2003, he remembered that the Veteran snored loudly every night. The Veteran's STRs reflect that clinical evaluations conducted in connection with examinations in March 1983, June 1989, and July 2003 revealed that lung and chest evaluations were normal, and he denied sleep-apnea-related symptoms at such examinations. The remaining STRs are negative for any complaints, treatment, or diagnoses referable to sleep apnea. The Veteran's post-service VA treatment records report an impression of moderate obstructive sleep apnea following a polysomnogram in August 2009. Furthermore, a July 2014 VA treatment record notes an assessment of obstructive sleep apnea. A March 2012 private opinion from M.L., a physician's assistant, reveals that the Veteran was diagnosed with obstructive sleep apnea by sleep study performed in July 2009, and he opined that it was more likely than not that the Veteran's sleep apnea had been an ongoing health concern for many years and likely greater than 5-10 years. A July 2012 VA examination report indicates that the Veteran reported trouble sleeping his whole life and was tired all the time. Additionally, the Veteran's wife reported that he snored and would stop breathing for the past 26 years, and she felt that his sleep issues were worse during his time in service. Following an examination, the VA examiner noted a diagnosis of obstructive sleep apnea since 2009, and opined that it was less likely than not that the Veteran's sleep apnea was incurred in service. As rationale for the opinion, the examiner indicated that the Veteran noted he had issues with sleep for years and that his medical records reflected the same, and therefore, it could not be noted that the Veteran's sleep apnea occurred in service. The examiner further indicated that events that occurred while the Veteran was in service may have exacerbated his symptoms of sleep apnea. A March 2017 private opinion from Dr. B.W. notes that the Veteran received ongoing medical care for mild obstructive sleep apnea, and was diagnosed by polysomnogram in September 2009 with CPAP support initiated. He further reported that the Veteran's medical record was reviewed for evidence of sleep apnea during his active duty service; however, no direct medical evidence of support was noted from his enlistment to his retirement in November 2003. However, Dr. B.W. indicated that, in 2003, especially at a station such as Fort Campbell, sleep medicine services and expertise were not available. Here, he explained that the condition of obstructive sleep apnea was not well understood or disseminated in the primary care environment. Additionally, Dr. B.W. noted that the Veteran's record contained signed statements from his spouse and co-workers indicating that his pattern of heroic snoring with frequent pauses was present throughout most of his Army career and well before 2003; and such pattern was witnessed and documented by multiple individuals. He further noted that a review of the Veteran's vital sign information indicated that his weight and body habitus did not change significantly from the early 2000s through his diagnosis in 2009, which indicated fixed and likely risk factors for sleep apnea. Dr. B.W. concluded that, although it could not be proved that the Veteran's sleep apnea was present prior to 2003, it could be concluded that such was highly likely; and therefore, such condition should be considered to be service-connected. The Board recognizes that the March 2012 private opinion by M.L. found that he Veteran's sleep apnea had its onset in service, and the July 2012 VA examiner found that the Veteran's sleep apnea was not incurred in service. However, the Board finds the aforementioned opinions are inadequate to decide the claim. In this regard, the March 2012 private opinion contained no rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support is conclusion with an analysis that the Board can consider and weight against contrary opinions"). Furthermore, the July 2012 VA examiner rationalized that the Veteran noted he had issues with sleep for years, and therefore, events that occurred while he was in service may had exacerbated his symptoms of sleep apnea. Here, such opinion appears to indicate that the Veteran experienced sleep-apnea-related symptoms and/or suffered from sleep apnea prior to service. However, during his December 2016 Board hearing, the Veteran provided additional information regarding his sleep-apnea-related symptoms, which was not considered by such examiner. Specifically, the Veteran testified that, while he had experienced sleep-apnea-related symptoms while in service, he never experienced such symptoms, to include snoring, prior to his service. Therefore, it appears that the July 2012 VA examiner's opinion is based on an inaccurate factual history. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on inaccurate factual premise are not probative). To the contrary, the Board accords great probative weight to the March 2017 private opinion by Dr. B.W. as such is consistent with, and supported by, the other evidence of record. In this regard, the Veteran's spouse, G.P., and D.F. competently described the Veteran's in-service symptoms regarding his sleep apnea and the Board finds no reason to doubt their credibility in such regard. Moreover, the Veteran has consistently and competently described the onset of his sleep apnea as occurring in service throughout the course of the appeal. Therefore, the Board accords great probative weight to Dr. B.W.'s opinion that, based on such history, it was highly likely that the Veteran's sleep apnea was present prior to 2003. Here, such opinion indicates that Dr. B.W. reviewed and considered the Veteran's service and medical history; he provided a complete rationale, relying on and citing to those reviewed records; and he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Furthermore, Dr. B.W. addressed the reason why the Veteran's STRs were negative for a diagnosis of sleep apnea, or any symptoms related thereto, i.e., that such field of medicine was not well-developed at the time the Veteran served. Consequently, the Board resolves all doubt in favor of the Veteran, and finds that his sleep apnea had its onset in service. Therefore, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for sleep apnea is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs