Citation Nr: 1736644	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-37 904	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


Entitlement to service connection for sleep apnea.


S. Layton, Counsel


The Veteran had active service from March 1971 to October 1992.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA).  In April 2014, the Board remanded the claim for additional development.

The Veteran died in July 2016.  However, the appellant is the Veteran's surviving spouse and has been accepted as the Veteran's substitute for purposes of processing this appeal to completion.  38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2016).


Resolving all reasonable doubt in favor of the Veteran, the evidence supports a finding that the Veteran had sleep apnea that was directly related to active service.


The criteria for service connection for sleep apnea have been met.  38 U.S.C.A. §§ 1110, 1131, 1132, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016).


Sleep Apnea

Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).  In order to establish service connection for a claimed disability, there must be (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) evidence, generally medical, of a relationship between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247 (1999).  

A review of the evidence of record shows that the Veteran clearly had a diagnosis of obstructive sleep apnea, such as in an October 2008 private treatment record and  May 2009 sleep study.  Therefore, the question to be answered is whether that diagnosed obstructive sleep apnea was caused by or was present during active service.

In May 2014, a VA examiner reviewed the available records.  The examiner did not see or interview the Veteran.  The examiner stated that the service medical records were reviewed and were not helpful.  The examiner further noted that the Veteran had a polysomnogram performed 16 years after separation from active service, but found no other helpful treatment records.  The examiner was unable to opine whether the Veteran had obstructive sleep apnea during service.  Therefore, the May 2014 VA examiner offered no opinion regarding a direct link between the Veteran's diagnosed sleep apnea and service.  That evidence weighs neither for or against the claim.

In September 2009, the Veteran's spouse remarked that the Veteran had difficulty with his sleep since 1986.  She stated that they were not familiar with sleep apnea at the time, and as the years passed, the Veteran's condition worsened.  She stated that she had spent many sleepless nights making sure that the Veteran was alright.  She added that he was issued a CPAP machine in May 2009.  The spouse's statement provides evidence of a continuity of sleep apnea symptoms dating from the Veteran's active service through the time of appeal.

Additionally, the Veteran consistently and credibly complained of sleep-related symptoms since active duty.  The Veteran stated in various submissions to VA and at his hearing before a Decision Review Officer that he had experienced sleep disturbances.  The Veteran and his spouse are competent to describe the Veteran's snoring and apnea symptoms because those symptoms come to them through their senses and require only personal knowledge rather than medical expertise.  Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Board finds the Veteran's and spouse's statements to be credible.

The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection.  Layno v. Brown, 6 Vet. App. 465 (1994).  In this case, the Board finds that the evidence is at least in equipoise, and the lay testimony provides sufficient support for the present claim.  The Board finds that lay testimony to be credible.  There is no medical opinion of record that refutes that lay testimony that the Veteran began experiencing symptoms in service that were later diagnosed as sleep apnea following service.

Accordingly, in light of the medical treatment records which document sleep apnea, and the Veteran's and spouse's lay statements, the Board resolves reasonable doubt in favor of the Veteran and finds that service connection for sleep apnea is warranted.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).


Entitlement to service connection for sleep apnea is granted.

Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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