13-02 232
13-02 232
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served on active duty from Sept. 1980 to Sept. 2000 and appealed an April 2009 RO decision denying service connection for obstructive sleep apnea (OSA).
- Veteran reported poor sleep and fatigue in service (Jan 2000). Wife and Veteran submitted lay statements alleging chronic snoring and apneic episodes since at least 1991; Veteran testified symptoms worsened post-service and was diagnosed with OSA in 2005.
- VA exam (Feb 2009) opined OSA was not service-connected, citing an in-service upper respiratory infection, lack of documented airway structural abnormalities, and obesity as primary risk factor.
- Later private records (2012–2013) documented upper airway structural abnormalities (Mallampati II, high arched palate, lateral palatal narrowing, obstructive left turbinates); 2016 CPAP titration confirmed OSA even at lower weight.
- Board found Veteran and wife credible on in-service and continuous post-service symptoms, credited evidence of structural abnormalities, resolved reasonable doubt in favor of Veteran, and granted service connection for OSA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for obstructive sleep apnea | Veteran: OSA began in service/continuous since service; lay and buddy statements, sleep study and diagnosis support nexus | VA: Feb 2009 examiner—no nexus; in-service note attributable to URI; lack of structural abnormality; weight primary cause | Granted — Board found credible continuous symptom evidence, structural abnormalities in private records, and resolved doubt for Veteran |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir.) (elements for service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (limits continuity-of-symptomatology to chronic conditions under 38 C.F.R. § 3.309(a))
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (continuity of symptomatology framework)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt/evidence weighing)
- Layno v. Brown, 6 Vet. App. 465 (1994) (competence of lay evidence for observable symptoms)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (credibility of lay evidence without contemporaneous medical records)