Citation Nr: 1808711	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  09-48 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for sleep apnea

2.  Entitlement to service connection for insomnia.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Nancy Lavranchuk, Accredited Agent


ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from June 8, 1956 to August 31, 1990. He served in the Vietnam War, and was awarded the Bronze Star Medal for Valor.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida, and the September 2012 rating decision by the VA RO in Decatur, Georgia (RO). In the March 2008 rating decision, the RO denied entitlement to service connection for sleep apnea. In the September 2012 rating decision, the RO denied entitlement to TDIU.

In April 2015, the Board remanded the claim to the RO for further development. Specifically, the Board directed the RO to schedule the Veteran for a VA examination to determine whether the Veteran's diagnosed sleep apnea was related to his military service. This action has been completed.

In January 2016, the Board remanded the claim to the RO for further development. Specifically, the Board directed the RO to obtain an addendum medical opinion regarding the Veteran's claimed sleep apnea, to determine the level of functional impairment from the Veteran's service-connected disabilities, and to readjudicate the claims. These actions have been completed.

The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a disability claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran submitted a claim for sleep apnea in June 2007. The Veteran's service treatment records indicate a broader description of "trouble sleeping" and the medical examiner's appear to indicate that sleep apnea and insomnia are separate disorders. As such, the Veteran's original claim for sleep apnea is broadly interpreted as a claim for two separate sleep disorders - sleep apnea and insomnia.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran has a current diagnosis of obstructive sleep apnea, and the evidence is in relative equipoise on the question of whether the sleep apnea is related to service.

2. The weight of evidence shows that the current diagnosis of an insomnia disorder is related to the in-service insomnia.


CONCLUSIONS OF LAW

1. The criteria for service connection of obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2. The criteria for service connection of insomnia are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

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 evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). 

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Entitlement to Service Connection for Sleep Apnea

The Veteran is seeking service connection for a sleep condition, claimed as sleep apnea. The Veteran was diagnosed with sleep apnea in April 2006.

Service treatment records reveal reports of sleepiness and complaints of sleep difficulty. The Veteran has reported that while in Vietnam, he had difficulty staying asleep and that these difficulties continued throughout the remainder of his military career. He cited incidents of sleepiness, drowsiness, gasping and waking, and snoring and stated that these began in service. The Veteran's claims are supported by lay statements of his ex-wife and daughter. The Board finds no evidence of record impeaching the credibility of these lay witnesses.

A VA examination was afforded the Veteran in August 2015. The examiner diagnosed the Veteran with mild sleep apnea with persistent daytime hypersomnolence. The examiner opined that the Veteran's sleep apnea "is not due to or otherwise related to service." She further opined that "sleep apnea was not diagnosed until 2006...there is no objective evidence of sleep apnea in service or even the entertainment of the diagnosis in service."

The August 2015 examiner noted testing establishing the diagnosis of sleep apnea as of 2006, and reported the Veteran's statements of onset in service. However, the examiner did not address the lay statement of the Veteran's wife or the notations of "trouble sleeping" that the Veteran made on periodic physical examinations. In its 2015 remand, the Board found that this opinion was not adequate because of the lack of consideration of the lay evidence.

In October 2017, the Veteran underwent an additional VA examination to clarify the previous opinion and address the issue of service connection. The examiner found that the Veteran "has a diagnosis of sleep apnea. This is caused by the collapse of the upper airways during sleep...The clinical manifestations for this disease include morning headaches, daytime sleepiness and non-restorative sleep, hypertension, heroic snoring, and choking/gasping. Review of the STRs did not find evidence of these signs or symptoms."

The October 2017 examiner further opined that "given that the sleep apnea was diagnosed 16 years after service, was classified as mild, and without pathognomonic signs and symptoms of apnea during service or of a nexus, there is no evidence to link his current sleep apnea with the light sleeping during his military service." 

The Board finds that this opinion of limited probative value. The examiner did not address the lay evidence of snoring, choking, gasping, and daytime sleepiness, which was noted as persistent daytime hypersomnolence by the previous examiner. The examiner also did not fully consider the statements of the Veteran, or the corroborating reports of his ex-wife. The examiner noted that the Veteran claimed to be a "light sleeper," without any discussion of the etiology behind this condition. Additionally, the examiner did not address the onset of sleep problems following his service in Vietnam. 

The Board finds that the evidence of record regarding a nexus between service and sleep apnea is in equipoise. Medically, there is no documentation of a specific in service diagnosis of sleep apnea, which was not commonly diagnosed during the Veteran's service, but there are notations by the Veteran indicating a sleep condition. The Veteran and his ex-wife and daughter are competent to report their personal observations. His ex-wife and daughter are competent to report what they observed of his sleep habits, and they are consistent with each other regarding his waking, gasping, and breathing pauses. There is no basis upon which to question their credibility. Moreover, some of the symptoms manifested in service were ultimately diagnosed as sleep apnea. The VA examiner specifically indicated that "the clinical manifestations for this disease include morning headaches, daytime sleepiness and non-restorative sleep, hypertension, heroic snoring, and choking/gasping." The lay evidence establishes in service symptoms of non-restorative sleep, snoring and choking/gasping. There is no legal requirement that these symptoms actually be recorded in the service treatment records. Accordingly, resolving all doubt in favor of the Veteran, service connection for obstructive sleep apnea is warranted.

Entitlement to Service Connection for Insomnia

The Veteran is seeking service connection for a sleep condition, claimed as sleep apnea. However, as discussed above, the Board will also consider the diagnosed condition of insomnia. He essentially asserts that the sleep condition had its onset in service and has continued to the present time. The service treatment records show that the Veteran reported difficulty with sleep beginning upon his return from Vietnam. Throughout the remainder of his military career, the Veteran reported the same thing on every periodic physical examination, as well as on his retirement physical examination.

The Veteran's ex-wife provided a lay statement which stated "he was then unable to go back to sleep and on most nights he would get up, leave the bedroom, and not return to bed for hours." His ex-wife stated that the condition continued from his return from Vietnam in 1969 and 1980, when the couple divorced.

In a January 1985 in-service physical examination, the examining physician found that the Veteran had "frequent insomnia."

In August 2015, the Veteran underwent a VA examination for sleep apnea. The examiner noted insomnia and even "encouraged (him) to consider claiming insomnia due to service."

In October 2017, the Veteran underwent an additional VA examination to clarify the previous opinion regarding sleep apnea and address the issue of service connection. The examiner stated that the Veteran's symptoms "suggest insomnia/frequent wakenings which has been associated with sleep apnea..(medical research) suggests insomnia may suggest a possible association, but there is no evidence to suggest a causative relationship." The examiner also noted "frequent insomnia."

Based on the evidence of record and when resolving all doubt in favor of the Veteran, the Board finds that service connection for insomnia is warranted. Initially, service treatment records and the Veteran's statements show complaints of sleep difficulties including difficulty falling asleep and a diagnosis of insomnia. The VA examinations also clearly show a diagnosis of insomnia. 

Additionally, the Veteran has reported symptoms of insomnia since service. Importantly, the Veteran, as a layperson, is competent to report events within the realm of his personal experience. See 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, difficulty falling and staying asleep are symptoms capable of lay observations. Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of experiencing difficulty sleeping. Likewise, the medical evidence of record supports a finding that his insomnia had its onset in service and has continued to the present time. 

As such, there are in-service treatment records indicating insomnia and trouble sleeping, a diagnosis of insomnia during the pendency of the claim, and a link between the current insomnia and service based on the Veteran's and his family's competent lay statements. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board must conclude that the evidence is in at least a state of equipoise and service connection for insomnia is warranted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for sleep apnea is granted.

Entitlement to service connection for insomnia is granted.

REMAND

As for the TDIU claim on appeal, the Veteran has reported difficulty in securing or maintaining gainful employment due to his disabilities. The previous RO decision did not find service connection for any sleep disorder. As the entitlement to service connection ordered above could affect entitlement to TDIU benefits, or potential extraschedular consideration, the issue of entitlement to TDIU must be remanded for adjudication.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

Associate with the claims folder updated VA and private treatment records.

2.  Assign initial disability ratings for service-connected sleep apnea and insomnia.

3.  Thereafter, readjudicate the issue of entitlement to TDIU.  If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs