Citation Nr: 1329323 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 04-30 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to May 1980, from December 1981 to February 1988, and from March 1989 to January 2000. His DD Form 214 reflects that he served in the Southwest Asia (SWA) Theater of Operations. He was also awarded the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating action in September 2004 by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing held in June 2006, before the undersigned Veterans Law Judge at the St. Petersburg RO. The transcript from that hearing has been associated with the claims file and reviewed. The Board remanded this case in July 2007. In June 2009, the Board affirmed the RO's denial of benefits on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2010 Order, the Court granted the parties' Joint Motion to vacate and remand that portion of the Board's decision that denied service connection for sleep apnea and night sweats for additional development and readjudication consistent with the directives contained therein. [The Board's decision with regard to the grant of service connection for bilateral elbow tendonitis and bilateral hand tenosynovitis was not disturbed.] The case was again remanded by the Board in December 2010 for additional development and adjudicative action. In June 2012, the Board denied service connection for sleep apnea and night sweats. However, the Veteran again appealed the Board's decision to the Court. In a January 2013 Order, the Court granted the parties' Joint Motion to vacate and remand that portion of the Board's decision that denied service connection for sleep apnea for additional development and readjudication consistent with the terms of the Joint Motion. [The Board's decision with regard to the denial of service connection for night sweats was undisturbed and the appeal regarding this issue was dismissed by the Court.] In April 2013, the Board remanded this case so that a VA medical opinion could be provided to address the etiology of the Veteran's sleep apnea with consideration of a private medical opinion provided in April 2010 and the Veteran's and his friends and family's lay statements regarding continuity of symptomatology. The directives of the Board's April 2013 remand have been substantially complied with, as explained in more detail in the VCAA section below. Virtual VA records include a June 2013 VA psychiatric examination report that does not address sleep apnea, but does mention this disability in passing. Although the RO has not reviewed this evidence, the Board does not deem the June 2013 examination report as relevant to the Veteran's claim on appeal as the issue of sleep apnea is not directly addressed by the VA examiner. Therefore, a remand pursuant to 38 C.F.R. § 20.1304 is not warranted. The Veteran also submitted numerous lay statements from him and his fellow service members and wife dated in June 2013 that had not been considered by the RO. Nonetheless, the Veteran's representative included a note that the Veteran wished to waive RO jurisdiction over the evidence submitted. The Veteran noted in his June 2013 statement that he was presently "working on a second medical opinion to provide to the Board with more evidence." However, neither the Veteran, nor his representative requested any additional time before a decision was to be made, nor was there any indication as to when this evidence should be received. To date, there is no record of the Board receiving any additional evidence concerning the Veteran's claim. For this reason, the Board will proceed with a decision on appeal. FINDING OF FACT The Veteran has a clinical diagnosis of obstructive sleep apnea, accounting for his current sleep difficulties. Obstructive sleep apnea, a known clinical condition, has been linked by competent and credible evidence to his military service. CONCLUSION OF LAW Service connection for obstructive sleep apnea is warranted. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants service connection for sleep apnea. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Law and Analysis The Veteran seeks service connection for obstructive sleep apnea, which he contends is the result of an undiagnosed illness caused by environmental hazards (smoke from burning oil fields) from his service in the Persian Gulf War. He contends that military medical personnel were unable to determine what was causing the fatigue, and that went undiagnosed until after service discharge. The Veteran's wife, who reported having been married to him since 1980, noted that she had observed his excessive snoring. She reported that there were also times when the Veteran would stop breathing while asleep. She also indicated that the Veteran's symptoms might be connected to hypertension. The Veteran's fellow service member and his service member's wife also submitted statements that they had known the Veteran to have sleep problems since 1991 and had known that he had excessive snoring since then. See VA Form 9 in August 2005 and lay statements dated in June 2006. In June 2013, the Veteran, his wife, and two of his fellow service members submitted additional statements in support of the claim. The Veteran indicated that after reviewing all of the medical opinions including some with speculative opinions, all doubt should be resolved in his favor. The Veteran pointed out that at one point an examiner agreed that the Veteran's apneic spells began in the mid 1990s but then backtracked on his opinion stating that he could not say without resorting to mere speculation. The Veteran also noted that the most recent examiner agreed that fatigue, hypersomnolence, and night sweats often indicated the presence of obstructive sleep apnea but that this was not so in the Veteran's case. Finally, the Veteran also stated that at the retirement physical in which a notation of sleep problems due to back pain was recorded, he only mentioned that he had back pain and sleep problems. The back pain began in the 1970s and the sleep problems in the 1990s. The Veteran's wife and fellow service members also noted collectively that they had witnessed the Veteran snoring and experiencing trouble breathing at night prior to his weight gain after service, and also that the Veteran had a distinguished career and was highly decorated and deserved VA's every consideration. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b) . In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three- element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: " The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology". Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at 1338. Sleep apnea is not listed as a chronic disease under 38 C.F.R. § 3.307(a) and thus, is not entitled to service connection on the basis of continued symptomatology since service. Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal complaints (excluding structural gastrointestinal disorders)) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below. The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non- medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws of the United States. 38 C.F.R. § 3.317(a)(3-5). Signs or symptoms which may be manifestations of an undiagnosed illness or a chronic multisymptom illness include, but are not limited to: fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b) ) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (flatfeet); Falzone v. Brown, 8 Vet. App. 398 (1995) (tinnitus). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Turning to the evidence of record, service treatment records (STRs) show that in February 1995 the Veteran began to suffer from an episode of a nonspecific illness, primarily characterized by fever, joint pain, fatigue, headaches, night sweats, and subjective fever. These symptoms were ultimately attributed to a viral syndrome. At that time the Veteran noted that he had been in the Persian Gulf and was concerned about Gulf War Syndrome. The clinical impression was joint pain with night sweats - rule out infectious disease vs. rheumatism. There were no specific complaints involving difficulty sleeping. The Veteran later presented for follow-up of laboratory work performed, which showed a decrease in the Veteran's white blood count (WBC). He reported that he longer had night sweats, but continued to experience fatigue. The clinical impression was rule out mononucleosis vs. autoimmune disease vs. lab error. The remaining records are negative for any additional follow-up evaluation or clinical findings during the Veteran's remaining years of service to suggest that this episode constituted a chronic disease process or that provide a basis for such a diagnosis. The STRs are otherwise negative for symptoms suggestive of a sleep disorder, including sleep apnea. At his retirement physical in August 1999, the Veteran reported a history of frequent trouble sleeping and the examiner reported in the narrative portion of the report that it was due to back pain. Post-service records show the Veteran was examined in October 1999, within several months of service discharge, for various medical complaints, but did not indicate any specific sleep problems and none are documented. He underwent a physical examination in April 2000, but again did not report any sleep complaints. There are essentially no pertinent clinical records associated with the claims file until January 2004, when the Veteran underwent a sleep study for problems with snoring, night sweats, witnessed apneas, heartburn upon waking, leg movements, excessive daytime hypersomnolence, and occasional sleep talking. A family history of snoring and daytime hypersomnolence was also noted. The impression was severe obstructive sleep apnea with clinically significant oxygen desaturation as well as snoring. A week later, the Veteran underwent a successful night CPAP titration. It was recommended that he lose weight, avoid alcohol and certain medications, and use a nightly CPAP machine. In August 2008, the Veteran was afforded a VA examination. The Veteran's current complaints were of daytime hypersomnolence, night sweats, snoring and apneic spells. The Veteran also reported a weight change between 1990 and 1991 where he lost about 80 pounds in Iraq, but then regained the weight when he returned to the U.S. The physician noted the Veteran had a history of sleep apnea with the onset in the mid-1990s during service and referred to the January 2004 sleep study findings that were consistent with severe sleep apnea. He also referred to the numerous service records documenting the Veteran's night sweats and temperature readings. The clinical impression was sleep apnea without medical therapy. The physician opined that it was most likely that the Veteran's complaints of night sweats were due to the sleep apnea, however he could not resolve whether the sleep apnea was caused by or the result of the Veteran's time in service without resort to mere speculation. In February 2009, the physician who examined the Veteran in August 2008 provided a supplemental opinion addressing the inadequacies in the previous opinion. After reviewing the claims file extensively, he confirmed that severe obstructive sleep apnea was diagnosed in 2004 and concluded that it was less likely than not caused by or related to service. He explained that obstructive sleep apnea/hypopnea was predominantly caused by a developmentally narrow nasopharyngeal airway with superimposed natural aging, and increased BMI. However he then stated that it was not medically possible to say, without resorting to mere speculation, the precise onset, but that it was present in January 2004. In April 2010, the Veteran was evaluated by a private pulmonologist who determined the Veteran had moderately severe sleep apnea diagnosed in 2004, and likely present in the military before discharge, based on his symptoms of fatigue, hypersomnolence and night sweats. However the examiner then noted the Veteran had a history of sleep apnea and hypertension which was also likely related. The Veteran was counseled regarding smoking cessation, tobacco use, diet, and weight control. Pursuant to the Board's 2010 Remand, a supplemental VA opinion was obtained in December 2010. After reviewing the claims file in its entirety, the examiner concluded the Veteran had a claimed disability pattern, diagnosed as obstructive sleep apnea, related to sleep problems that met the criteria for a disease with a clear and specific etiology and diagnosis. She went on to explain that the Veteran's subjective night sweats in service were acute and transient possibly related to an acute viral type infection and thus were inconsistent with chronic obstructive sleep apnea. She noted that many individuals were prone to night sweats as they could be caused by multiple circumstances including BMI and medications, such as aspirin or Motrin. She concluded that if no etiologic condition is found, then there is unlikely to be a pathologic etiology. In another supplemental opinion obtained in December 2011, the examiner noted the Veteran's history of treatment during service in 1995 for symptoms including night sweats and fatigue, which had been ultimately attributed to viral syndrome. The examiner also noted that at the Veteran's retirement physical examination in 1999, the Veteran indicated trouble sleeping due to back pain, but did not otherwise complain of night sweats and there was no diagnosis of a sleep disorder. The examiner concluded the Veteran's sleep difficulty reported on his August 1999 retirement examination was due to back pain and therefore was less likely than not related to the sleep apnea that was first diagnosed after service in 2004. In February 2012, the examiner who provided the opinion in December 2011, provided yet another supplemental opinion confirming the Veteran's severe obstructive apnea and concluding that it was less likely than not caused by or related to the symptoms reported in service. She explained that the sleep difficulty documented at retirement in 1999 was due to back pain and not related to sleep apnea. She also noted there were other risk factors for obstructive sleep apnea including obesity, craniofacial abnormalities, upper airway soft tissue abnormalities, heredity, smoking, nasal congestion, and diabetes. Finally, pursuant to the Board's April 2013 remand, in May 2013 another medical opinion was provided by a VA doctor, who determined that it was less likely than not (less than 50 percent probability) that the Veteran's sleep apnea incurred in or caused by the any in-service injury, event, or illness. The VA physician noted that the entire claims file was reviewed, including, but not limited to, the Veteran's service treatment records, previous VA examinations, private medical records, sleep studies, VA records, the April 2010 letter from Dr. K (consult requested by Dr. C), and lay evidence from the Veteran, his spouse, and fellow service members. The VA physician noted that the Veteran retired from active duty in January 2000 and that his retirement examination was performed in August 1999. His weight at that time was 197 pounds (with a BMI of 27- 28). At that time he complained of sleeping problems due to back pain and noted chiropractic treatment. In January 2004 he was diagnosed with sleep apnea. His weight was noted to be 220 pounds with a BMI of 31, which represented a greater than 10 percent weight gain from the retirement examination. His most recent VA weight gain in August 2012 was 252 pounds with a BMI of 35-36 (representing a 28 percent gain since retirement). The physician noted the letter from Dr. K and that it was unclear whether Dr. K had been afforded the opportunity to review the Veteran's service treatment records. The physician indicated that Dr. K's statement that was made that the presence of fatigue, hypersomnolence, and night sweats often indicate the presence of obstructive sleep apnea was generally true. However, the complaints and symptoms must be taken in context and the clinicians treating the Veteran at the time of the complaint must be given weight. At that time the focus was on specific joint pains, subjective complaints of night sweats, and evaluation of laboratory abnormalities. The clinicians at the time did not did not see fit to place sleep apnea in the realm of diagnoses to be ruled out. It was thus the VA physician's opinion that the Veteran's in-service complaints, when taken in context, did not lead to the conclusion of a diagnosis of obstructive sleep apnea. The VA physician noted that the lay evidence provided by the Veteran's spouse, service colleagues, and spouse of the Veteran's colleague was accepted at face value and that it was a common misunderstanding to presume snoring means the presence of sleep apnea. However, it was noted that while almost all people with sleep apnea snore, not all people who snore had sleep apnea. The physician determined that the greatest change in risk for the development of sleep apnea in the Veteran was the marked increase in weight (greater than 10 percent) from separation from service to diagnosis. It was therefore the conclusion of the physician that the Veteran's undisputed diagnosis of obstructive sleep apnea was less likely than not caused by, related to, or worsened beyond natural progression by military service. After considering the evidence of record as a whole, the Board concludes that service connection for sleep apnea is warranted. Initially, with respect to the Veteran's allegation that he suffers from a sleep disorder due to an undiagnosed illness, which had its onset during the Gulf War, the Board finds that there are objective indications that he has a history of obstructive sleep apnea, a known clinical diagnosis, and therefore his claim that this disorder is due to an undiagnosed illness incurred during Persian Gulf service, pursuant to 38 C.F.R. § 3.317, is precluded. See also VAOPGCPREC 8-98. This issue will therefore be considered on a direct service connection basis. There is no disputing the Veteran has sleep apnea currently and has since at least 2004. The Board also resolves all doubt in the Veteran's favor that the most competent and credible (and therefore ultimately probative) lay and medical evidence of record provides the required linkage between his current sleep apnea and anything that occurred during his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Many of the VA examinations of record are problematic, as they are either contradictory, confusing, or do not provide any rationale. The August 2008 VA examiner's opinion was that it was most likely that the Veteran's complaints of night sweats in service were due to the sleep apnea, however he could not resolve whether the sleep apnea was caused by or the result of the Veteran's time in service without resort to mere speculation. This opinion contradicts itself and also the examiner does not provide a rationale for why he could not provide an opinion without resort to speculation. Therefore, this opinion is not probative. The February 2009 VA opinion from the previous examiner in August 2008 notes that the Veteran's severe obstructive sleep apnea was diagnosed in 2004 and concluded that it was less likely than not caused by or related to service. However he then stated that it was not medically possible to say, without reporting to mere speculation, the precise onset, but that it was present in January 2004. This opinion still is not very helpful, nor does it have any probative value. A December 2010 VA medical opinion does not really address whether the Veteran's sleep apnea was related to his military service, but more focuses on his claim of night sweats and whether the night sweats were manifestations of sleep apnea. Therefore, this opinion also does not have any probative value pertaining to the issue on appeal. VA medical opinions in December 2011 and February 2012 from the same examiner determined that the Veteran's sleep apnea was not related to his military service based on the fact that his complaints of sleep problems in service were due to his back pain and not sleep apnea; and the complaints of night sweats and fatigue were attributed to a viral syndrome. The examiner also noted there were other risk factors for obstructive sleep apnea including obesity, craniofacial abnormalities, upper airway soft tissue abnormalities, heredity, smoking, nasal congestion, and diabetes. This opinion was not accepted as sufficiently probative to deny the claim by the U.S. Court of Appeals for Veterans Claims, however, as the examiner did not address the April 2010 private medical opinion, as directed by the Board's remand, and also did not address the lay statements submitted by the Veteran and fellow service members, as well as his wife, addressing the continued symptomatology since service. This leaves the May 2013 VA opinion and April 2010 private opinion, both of which have some deficiencies. In considering the April 2010 letter provided by the Veteran's private treating physician and the May 2013 VA opinion, the Board will afford equal weight to both. The May 2013 opinion was based on a review of the claims file, the Veteran's reported history, the examiner's own medical expertise, and was consistent with the other evidence of record. However, the private physician also provided a rationale based on the Veteran's reported symptoms of fatigue, hypersomnolence, and night sweats. The private physician also noted that the Veteran had a family history of sleep apnea, but it is not clear how this fact attributes his sleep apnea to military service. While the private physician appeared to base the opinion on the history given by the Veteran, in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran. Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. The Board does not find that the Veteran's reports lack credibility, as he has offered consistent statement concerning his symptomatology since service. His wife also has attested that he had snoring and fatigue and would stop breathing, which began during his service as far back as his return from the Gulf War in 1991 and that he has continued to experience these symptoms ever since. Both of them are competent to make these proclamations. The Board cannot reject this lay testimony concerning this out of hand. Kahana v. Shinseki, 24 Vet. App. 428 (2011) (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence). The 2013 VA examiner, while discussing the lay evidence and indicating that such statements were accepted at face value only addresses the lay assertions of snoring in service and does not address all of the lay statements, including the more detailed 2013 lay statements of the Veteran's spouse and a fellow Marine, which collectively show reports of gasping for air, stopping breathing while sleeping, exhaustion, joint pain, and other symptoms as well as the report that the Veteran kept going to sick bay because of symptoms without any real resolution or diagnosis prior to any weight gain. The Veteran's spouse also more recently reported that the Veteran weighed 130 pounds when the reported symptoms started, and that it took 10 years to obtain a proper diagnosis. The 2013 VA examiner did not specifically address this aspect of the lay evidence, in part, because the more detailed lay evidence was received after his 2013 opinion was rendered, nor did he address the competent lay evidence that the Veteran continued to experience such symptoms prior to the 1995 service treatment record entries and after that time up until the 2004 diagnosis. He did not address the Veteran's recent assertions that at retirement he only mentioned that he had back pain and sleep problems, but did not report any relationship between the two. While he attributes the Veteran's risk for development of sleep apnea to the Veteran's "marked increase in weight" from discharge to diagnosis, he does not point to any evidence of record other than the isolated service treatment record entries as to why the lay evidence of record documenting symptoms before such weight gain are not credible. The VA opinion also notes that in addressing the 2010 private opinion of record, it was unclear whether the private examiner was afforded the opportunity to review the Veteran's service treatment records such that the inservice Veteran's complaints of fatigue, hypersomnolence and night sweats could be put into context. The Board finds that this is a valid reason to accord some diminished probative weight to that opinion. However, the VA examiner is also not aware of whether the private examiner knew of the purported history of symptoms prior to the date of the service medical record entries, and it is likely that the private examiner did take a detailed accurate history of signs and symptoms of the disorder for which he was evaluating the Veteran prior to rendering his opinion. Essentially, the Board finds that the 2013 is not entitled to greater weight than the April 2010 private pulmonologist's opinion based on the foregoing discussion. For these reasons and bases, the Board resolves all doubt in the Veteran's favor that the evidence demonstrates a connection between the Veteran's sleep apnea and his military service. Thus, his claim of entitlement to service connection for sleep apnea is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs