Citation Nr: 1807321	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  11-23 796A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a sleep disability, to include as due to obstructive sleep apnea. 

REPRESENTATION

Veteran represented by:	Illinois Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran, Veteran's Spouse


ATTORNEY FOR THE BOARD

G. Morales, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from January 1967 to January 1969.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in September 2015. A transcript is of record.

The case was before the Board in November 2015 and January 2017. The matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). Specifically, the Veteran was afforded a VA examination for his sleep apnea in compliance with the November 2015 remand, and an addendum was provided in response to the January 2017 remand, where the examiner spoke with the Veteran and his spouse and considered their competent responses for her opinion. 


FINDING OF FACT

The weight of the competent and probative evidence is against finding that the Veteran's obstructive sleep apnea was incurred during his active service. 


CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 



REASONS AND BASES FOR FINDING AND CONCLUSION

VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but it is not required to provide assistance to a claimant if there is not a reasonable possibility that assistance would aid in substantiating the claim. VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). 

The Veteran and his representative have not alleged any deficiencies in VA's duties to notify and assist. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. 

The Veteran contends that his obstructive sleep apnea is related to his breathing and sleep problems from his service in Vietnam. See 9/3/2015, Hearing Testimony, at p. 3. 

Legal Criteria and Analysis 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 
3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).

The Veteran's military occupational specialty was an infantryman. He served in Vietnam from January 1967 to January 1969. 5/27/2015, Certificate of Release or Discharge. He received a Purple Heart and Bronze Star, among other awards. Id. In view of the above, the Board finds that the Veteran is entitled to the combat presumption. 38 U.S.C. § 1154(b). 

Pursuant to 38 U.S.C. § 1154(b), for any Veteran who engaged in combat with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred or aggravated by such service, even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. See also 38 C.F.R. § 3.304(d). Accordingly, the Board finds credible the Veteran's account of his in-service sleep and breathing problems.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 

The Veteran has a current diagnosis of obstructive sleep apnea. See 1/5/2016, C&P Examination - OSA, at p. 1-2. The Veteran was first diagnosed with sleep apnea in October 2010 when he underwent a polysomnogram. Id. at 2. He currently uses a CPAP with supplemental oxygen. Id.

The Board also finds that the Veteran's sleep disorder and related problems were incurred in service. The Veteran is a combat veteran, awarded a Purple Heart and Bronze Star, and therefore the Board accepts his testimony that during service he would stop breathing and gasped for air while asleep. See 09/03/2015, Hearing Transcript, at p. 3. He additionally reported that he would take naps in the afternoon, and that he would wake up not breathing. Id. He suffered a mortar attack, which caused him to break his nose when entering a foxhole. See 1/27/2017, C&P Examination at p. 2. He also acknowledged ear, nose, and throat problems in a report of medical history during service. See 8/15/1969, STR - Medical, at p. 34.

However, the Board finds that the Veteran's obstructive sleep apnea is not etiologically related to his service in Vietnam. 

The Veteran underwent a VA examination in January 2016, and an addendum was provided in January 2017. In the initial examination, the examiner opined that the Veteran's obstructive sleep apnea was not related to service. 1/5/2016, C&P Examination - OSA, at p. 3. She stated that obstructive sleep apnea is an anatomic abnormality that is frequently related to increased weight, which obstructs the individual's breathing. Id. Additionally, she stated that it is not associated with any exposures, Agent Orange, or other conditions the Veteran experienced while in Vietnam. Id. The examiner relied in part on that there were no records of treatment while in service, which caused the Board to remand the issue for an addendum in January 2017. See 1/10/2017, Remand BVA or CAVC, at p. 11.

In the January 2017 VA Addendum, the same examiner opined that the Veteran's obstructive sleep apnea was not related to his in-service sleep and breathing problems. 1/27/2017, C&P Examination, at p. 1-2. Rather, she opined that his in-service breathing problems were related to nasal obstruction from nasal trauma. Id. She based her decision on a review of all the Veteran's files, as well as speaking to the Veteran and his wife that day telephonically. Id. It was during this conversation that the Veteran stated he had broken his nose from a mortar attack, and his nose was never reset. Id. He stated that his sleep and breathing problems occurred after the nose fracture. Id. The examiner stated that any remaining nasal obstruction "does not cause nor aggravate posterior oropharynx/upper trachea obstruction which is the etiology of OSA." Id. at 2. Additionally, she provided an alternative cause of his obstructive sleep apnea, such as increased body habitus later in life, which is consistent with the worsening of his symptoms around 2000. Id. 

The examiner's opinion is deemed highly probative, when coupled with the addendum, as it was given following an examination, a thorough review of the record, and after speaking with the Veteran and his spouse. The addendum provides an alternative and more likely cause of the Veteran's obstructive sleep apnea. Moreover, it was accompanied by a clear rationale. No other competent evidence of record refutes the examiner's findings. 
The Veteran and his spouse are competent to report symptoms. Jandreau, 492 F.3d at 1372.  The Veteran reported that he would stop breathing while in service and would gasp for air. See 9/3/2015, Hearing Testimony, at p. 3. Additionally, his spouse has testified that he when he is asleep she would notice he was not breathing, which would occur five or six times a night. Id. at 4. She stated that it has happened throughout the years and later worsened. Id. at 4-5. However, in order to establish the third element of service connection, the evidence of record must establish a link between what he experienced in service and his obstructive sleep apnea. 

The Board recognizes the lay statements indicating that the Veteran has had symptoms since service, but continuity of symptoms alone only satisfies the nexus requirement if the claimed disability is a chronic disability under 38 C.F.R. § 3.309(b), which obstructive sleep apnea is not. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

The probative evidence does not show that his obstructive sleep apnea is related to service. Although the Veteran contends that his obstructive sleep apnea is related to service, the VA examiner opined that it was more likely than not that the Veteran's sleep and breathing problems during and immediately after service were caused by his nasal trauma rather than his currently diagnosed obstructive sleep apnea. When the Veteran's breathing and sleeping problems worsened in the early 2000s, the examiner stated that it was more likely caused by increased body habitus. Additionally, there is no medical evidence or medical opinion to indicate a link directly to service. 


In light of the evidence above, the Board concludes that the preponderance of the evidence is against a finding of service connection for an obstructive sleep apnea disability. For the above reasons, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b). 


ORDER

Entitlement to service connection for a sleep disability, to include as due to obstructive sleep apnea is denied. 



____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs