Citation Nr: 18160437
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-49 040
DATE:	December 26, 2018
Entitlement to service connection for sleep apnea is granted.
The Veteran’s sleep apnea is related to his active service.
The criteria for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
The Veteran served on active duty in the United States Air Force from December 4, 2001 to April 5, 2002.
The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
Sleep apnea
Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017).
Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The Veteran contends that although he exhibited the symptoms of sleep apnea, he did not complain of the symptoms when he began having them because he did not know to go to the doctor for the problems he was having while sleeping and the tiredness he had while awake.  The Veteran further contends that his lack of knowledge during service should not preclude him from receiving benefits now.
While in service, the Veteran did not complain of symptoms that would point to sleep apnea.  Therefore, there was no medical diagnosis of sleep apnea during the Veteran’s active duty.  
Although the service treatment records do not show treatment for any sleep problems, the Board finds that the Veteran is competent to report the onset of symptoms including cessation of breathing, loud snoring, and daytime sleepiness during his active service.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge).  Moreover, lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d at 1316. Accordingly, the Veteran is also competent to report experiencing a continuing sleep pathology during and since his active service, as the onset, frequency, and duration of such symptoms as snoring, daytime sleepiness, and frequent pauses in breathing are certainly capable of lay observation. Id. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  
The Board additionally finds his competent statements of continuing sleep symptomatology during and since his active service to be credible. Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). The Veteran’s claim file has two buddy statements, one from the Veteran’s wife and the other from Veteran’s fellow Airman and supervisor.  Together, the statements describe symptoms of sleep apnea that were exhibited by the Veteran while in service, when Veteran returned home from service, and currently.  This evidence tends to validate the Veteran’s assertion that he initially experienced an in-service sleep pathology, the symptoms of which continued to worsen in the years following his active service.
The Veteran’s claim file also contains a letter from the Veteran’s private physician, Dr. C.O., which states that the Veteran exhibited symptoms of sleep apnea, including snoring and gasping for air, in the years immediately following his discharge, but noting that the physician failed to recognize it, diagnose it as such, and implement treatment for the Veteran.  Davidson, supra (indicating that lay evidence can be sufficient etiological evidence when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  This opinion was based on the physician’s familiarity with his long-term treatment of the Veteran and was made with a full and complete understanding of the Veteran’s medical history.  The Board thus finds it highly probative.
Accordingly, although there is no confirmed diagnosis of sleep apnea during active service, there is competent and credible evidence of the Veteran’s in-service manifestation of symptoms later diagnosed as sleep apnea.  There is also probative medical evidence.  Therefore, the Board resolves doubt in his favor and finds that service connection is warranted for sleep apnea on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Entitlement to service connection for sleep apnea is granted.
J. White
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Jones Council, Associate Counsel

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