12-05 180
12-05 180
| Board of Vet. App. | May 31, 2017Background
- Veteran served active duty 1983–1991, including Gulf War; RO denied service connection for obstructive sleep apnea (OSA) in March 2010 and the Board remanded in May 2014 for development.
- Objective diagnosis: August 2004 sleep study diagnosed moderate obstructive sleep apnea with CPAP recommended.
- Service and post-service records include repeated complaints (since service separation) of morning headaches, fatigue/exhaustion, shortness of breath, snoring, and related symptoms appearing in STRs and VA treatment notes from the late 1980s through 2004 and beyond.
- July 2016 VA examiner opined symptoms did not persist from service, but the examiner misstated the record by not acknowledging post-service complaints in the early 1990s; Board found that opinion based on an inaccurate factual premise and gave it little weight.
- Board found lay and medical evidence establishes OSA began in service and that post-service symptom continuity supports service connection; therefore, service connection for OSA was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSA is service-connected | Veteran: symptoms (morning headaches, fatigue, shortness of breath, snoring) began in service (circa 1987–1991) and continued post-service, culminating in 2004 OSA diagnosis | VA/RO: denied nexus; relied on 2016 examiner who said symptoms did not continue after service and first reappearance was 2004 | Granted: Board found current OSA and sufficiently probative lay/medical evidence of in-service onset and post-service continuity; resolves doubt for Veteran |
| Weight of July 2016 VA opinion | Veteran: examiner ignored or misstated earlier post-service complaints | VA: relied on examiner opinion to deny nexus | Board rejected the examiner’s opinion as based on inaccurate factual premise and assigned it little weight |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements required for service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (chronic disease presumption does not apply to conditions not listed)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (lay evidence may establish observable symptomatology and support diagnosis)
- Reonal v. Brown, 5 Vet. App. 458 (Vet. App.) (medical opinion based on inaccurate factual basis may be rejected)
- Monzingo v. Shinseki, 26 Vet. App. 97 (Vet. App.) (requirements for adequate VA medical opinions and weight to be assigned)