Citation Nr: 1807435 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-23 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA) with cognitive impairment, claimed as memory loss and neurological symptoms. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to December 2006. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran testified before the undersigned Veterans Law Judge sitting at the St. Petersburg, Florida RO. A copy of the hearing transcript is of record and has been reviewed. FINDING OF FACT The currently diagnosed obstructive sleep apnea with cognitive impairment had its onset during active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea with cognitive impairment have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. During the pendency of this claim, the Veteran related his symptomatology to his service in the Persian Gulf. However, as the Veteran's claim is being granted under 38 C.F.R. 3.303, no further theories of entitlement will be discussed. Turning to the case at hand, the Veteran is currently diagnosed with obstructive sleep apnea. The Veteran received this diagnosis after a December 2009 polysomnogram. See December 2009 private polysomnogram and April 2010 VA sleep study. The Veteran contends that the OSA had its onset during active service. He first noticed that he had difficulty with comprehension and concentration shortly before he was deployed to Kuwait when he had not had these issues before. Additionally, the Veteran reported he sought treatment during service for "loss of equilibrium" in 2005. In hindsight, he testified that he believed he was actually dozing off while driving and perceived this symptom as difficulty keeping his balance. See November 2017 Hearing Transcript. Significantly, his spouse also testified that she observed the Veteran snore heavily and loudly and observed that he stopped breathing periodically while he slept during service in the 1990s. She also confirmed he began to sweat profusely while sleeping. Id. She also observed a change in the Veteran's temperament, including an increase in irritability, loss of concentration, and an increase in losing items, like keys and checkbooks. She indicated that this behavior was unusual for him. In response, the Veteran sought treatment to determine the cause of his symptoms less than three months after he was discharged from service. Additionally, the Veteran reported a history of brief loss of equilibrium in April 2005 service treatment records, although it does not appear that a diagnosis was made or treatment provided. Additionally, the Veteran reported difficulty with memory and loss of equilibrium in the July 2006 Report of Medical History he completed for his retirement medical examination. On examination, the military physician opined that the Veteran's loss of equilibrium may be due benign positional vertigo or viral labyrinthitis, but no further testing was conducted and no diagnosis was made. Less than three months after discharge from service, in March 2007, the Veteran sought treatment from a private neurologist, Dr. V.S. The Veteran reported experiencing several episodes of imbalance for the previous couple of years, difficulty with short-term memory since 1997, and daytime fatigue. The Veteran's spouse also reported to the physician that the Veteran snored heavily at night. The Veteran was afforded a magnetic resonance image (MRI) of the brain and an electroencephalogram (EEG) in March 2007. The MRI report noted mild white matter signal changes, but was otherwise unremarkable. The EEG was normal. Dr. V.S.'s impression was that there was evidence that the Veteran had OSA and it could be contributing to his memory problems. In this regard, Dr. V.S. recommended a full work-up. The Veteran again sought treatment in January 2009 from a private neurologist, Dr. I.S. The examination was nonfocal, but he indicated the Veteran required a full-work up, and a neurophysiological evaluation was recommended. The Veteran underwent a neurophysiological evaluation in May 2009 with Dr. A.R. This testing confirmed the Veteran's subjective complaints of a decline in cognitive function. However, Dr. A.R. indicated that the etiology of this decline was unclear. Dr. A. R. diagnosed the Veteran with a cognitive disorder, not otherwise specified, and mood disorder secondary to medical problems. The Veteran was evaluated for adult-onset attention deficit hyperactivity disorder (ADHD) by a private psychologist, Dr. M.W., in October 2009. Dr. M.W. diagnosed the Veteran with ADHD secondary to a cognitive disorder. Specifically, Dr. M.W. noted that the Veteran endorsed symptoms that were inconsistent with ADHD, including that the Veteran's onset of symptoms was only 11-12 years before this examination, reports of spatial disorientation, and difficulty with word retrieval. The Veteran again reported an increase with memory problems, difficulty concentrating and focusing, difficulty comprehending written information, and an increase in losing objects in a December 2009 VA treatment record. The Veteran indicated these symptoms began 10 or 11 years prior to this examination, but the symptoms were not severe until the previous three years. Of note, the Veteran's spouse reported to the physician that she had not observed any apneas while the Veteran was sleeping but noted that he snored occasionally. The Veteran and his spouse reported he had had significant night sweats. The Veteran was diagnosed with mild to moderate OSA associated with moderate oxygen desaturations and severe snoring by a private polysomnogram in December 2009. A VA neurologist, in January 2010, reviewed the neuropsychological testing, and did not agree that the Veteran had ADHD. The VA neurologist noted that the OSA and the Veteran's previous shift work during active service caused the Veteran to be sleep deprived. The Veteran was afforded an MRI in February 2010 at VA. The MRI report indicated there was very early and minimal chronic small vessel ischemic disease, but was otherwise normal. The Veteran was again treated at VA in February 2010. The VA neurologist reported that the Veteran's longstanding cognitive complaints spanned approximately 12 years. In the last 10 years, the Veteran reported early morning tiredness, nodding off in the morning, staying up late at night to finish tasks that took longer for him to complete, being more alert at night, and sleep inertia. The VA neurologist noted that a private neurologist ruled out several etiologies for the Veteran's symptomatology other than OSA in early 2009. Additionally, the VA neurologist explained that cognitive difficulties resulting from untreated sleep difficulties can mimic ADHD. The VA neurologist's impression was that the Veteran's progressive cognitive complaints paralleled his difficulty sleeping. Specifically, the Veteran's main cognitive complaints were working memory, retrieval, focus, and visual/spatial difficulties. The VA neurologist diagnosed the Veteran with a cognitive disorder secondary to behaviorally-induced sleep deprivation and delayed sleep phase syndrome with comorbid mild OSA. The Veteran was afforded a PET scan in March 2010 at VA, which showed an imaging pattern of Alzheimer's disease, but was inconsistent with frontal lobe dementia. However, the Veteran was seen in May 2010 by his VA neurologist who reported that these types of PET scan results are also seen in patients with sleep deprivation and that the Veteran symptoms were not consistent with either ADHD or Alzheimer's disease. The VA neurologist again diagnosed the Veteran with cognitive disorder secondary to behaviorally-induced sleep deprivation and delayed sleep phase syndrome with comorbid mild OSA. The Veteran was afforded a VA Gulf War examination in July 2010. The VA examiner, a D.O., confirmed the previously diagnosed OSA and insomnia with impaired concentration and attention. The Veteran reported to the examiner the onset of symptoms was around 1998. The examiner attributed the Veteran's cognitive deficits to sleep deprivation which was caused by a combination of OSA and insomnia. However, the examiner concluded the OSA did not meet the requirements for presumptive service connection for gulf war illness. However, this medical opinion is not probative as to direct service connection because the examiner did not offer a conclusion as to whether the OSA had its onset or was caused by active service; thus, the Board assigns this opinion low probative weight on the question of direct service connection. In support of his claim, the Veteran submitted a private medical opinion from his treating physician Dr. S.A.G., a pulmonologist and sleep medicine specialist, at the Cleveland Clinic, in November 2017. Dr. S.A.G. examined the Veteran, reviewed his medical history including the pertinent and extensive testing, and found that the Veteran's history and physical examination were consistent with OSA. The physician considered other possible etiologies for the OSA including psychiatric, cardiac, hormonal, and other sleep disorders. Ultimately, he concluded that based on the Veteran's symptoms and the timeline of those symptoms, it was likely that the diagnosis of OSA was present for several years before the actual diagnosis of OSA in December 2009. The Board finds this medical opinion to be highly probative as it considered other possible etiologies of the OSA, considered the Veteran's medical history, was based on a physical examination, and was supported by an adequate rationale. Therefore, the Board assigns the November 2017 private medical opinion high probative weight. As reflected above, the record contains both favorable and non-favorable evidence addressing the etiology of the Veteran's OSA. Further development could be undertaken to obtain an additional medical opinion; however the Board finds that further delay is unnecessary because, after considering all the evidence of record, including medical and credible lay evidence, the Board finds the evidence is at least in equipoise that the Veteran's OSA had onset in service. Dr. S.A.G.'s highly probative opinion that the Veteran has had obstructive sleep apnea symptoms, as well as the competent and credible statements describing the Veteran's loud snoring and apnea episodes while in service, is supportive of the claim overall because it tends to show that the same symptoms that began in service were the basis for the later diagnosed obstructive sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere's disease). Additionally, July 2010 VA treatment records and the July 2010 Gulf War examination attribute the Veteran's cognitive symptoms, including difficulty with memory, loss of equilibrium, impaired concentration, and reduced comprehension, to his OSA. These symptoms were also reported in April 2005 and July 2006 service treatment records. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's obstructive sleep apnea with cognitive impairment had its onset during active service, and the appeal will be granted. (CONTINUED ON NEXT PAGE) ORDER Service connection for obstructive sleep apnea with cognitive impairment is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs