Citation Nr: 1754813 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-15 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1982 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, inter alia, denied service connection for OSA. In May 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge; a transcript is associated with the claims file. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's OSA is related to active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Consistent with this framework, service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In this case, the Veteran's service treatment records (STRs) do not reflect any complaints, treatments, or diagnosis of OSA. In addition, during his hearing, the Veteran testified that he never sought treatment for OSA or related symptoms during service. Private treatment records in November 1999 indicate a diagnosis of moderate OSA, and in December 1999 the Veteran started using a continuous positive airway pressure (CPAP) device. In an August 2012 statement, the Veteran's wife reported that she married him in 1989, and that after he returned from Desert Storm/Desert Shield in October 1990, she noticed that he snored in his sleep. She explained that the snoring started out mild but worsened over time, and that he stopped breathing for seven to 10 seconds, which increased to 10 to 15 seconds over time. She stated that his snoring became so loud that it became impossible to sleep in the same room. At that time, she also noticed that the Veteran seemed tired all the time, had trouble concentrating, and fell asleep watching movies. In 1999, she went to her primary care physician for migraines due to not being able to sleep because of the Veteran's snoring, at which time the Veteran underwent a sleep study and was diagnosed with OSA and given a CPAP device. A June 2013 Disability Benefits Questionnaire (DBQ) by the Veteran's private physician reflects a diagnosis of OSA as of 1999, with symptoms of daytime drowsiness, fatigue, and snoring if the Veteran did not use his CPAP machine. A February 2014 VA examination report notes the Veteran's statements that his snoring first began during service and that he experienced daytime fatigue and frequent napping. Following his discharge from service, the Veteran reported worsening symptoms and that his family stated that he snored loudly. The examiner noted the 1999 sleep study OSA diagnosis and his immediate use of CPAP thereafter, as well as his February 2012 sleep study re-evaluating his OSA and recommending a Bilevel Positive Airway Pressure (BIPAP) device. The examiner opined that the Veteran's OSA was less likely than not related to service because the Veteran had a body mass index of 32 at his 1999 sleep test, noting that obesity was a clear etiology for OSA. In addition, the examiner acknowledged the Veteran's statements that he snored while in-service, but stated that snoring was a common complaint that could be due to multiple factors and was not diagnostic of OSA. In addition, the examiner noted the Veteran's statements that his apneas were first noted post-service while working 12-hour shifts. The examiner also stated that the Veteran likely continued to gain weight following discharge, which led to the apneas and subsequent diagnosis of OSA. In February 2014, the Veteran submitted a statement from J.N., the Veteran's tank driver during Desert Storm and a member of his crew after their deployment. J.N. reported that the crew slept in very confined areas where they could hear and see almost everything other people were doing, and that during that time, the Veteran snored very loudly most of the night. He explained that there were periods when the Veteran stopped breathing and that J.N. would shake him awake. He reported that several other crew members also observed the Veteran's breathing stops and shook him awake several time per night. J.N. explained that when this happened, the following day the Veteran would be over-tired and his energy levels were horrible. He stated that the Veteran would be very tired during their downtimes, that he would stay in the tank while others performed maintenance, and would try to nap whenever possible. During his May 2017 hearing, the Veteran testified that he was over-tired during his deployment, but that his fatigue became more obvious afterwards. He explained that his wife complained of migraines because she could not sleep due to his snoring, and that he sought treatment in 1999 after she recorded him sleeping and he was able to hear how he stopped breathing while he slept. Given the evidence of record, the Board finds that service connection for OSA is warranted. While the February 2014 VA examiner addressed the Veteran's statements that he snored during service and experienced daytime fatigue, he opined that the Veteran's OSA was less likely than not related to service because the Veteran was obese at the time of his 1999 sleep study test, and obesity was a clear etiology for OSA. He also stated that the Veteran reported apneas post-service while working 12-hour shifts. However, the examiner did not address the Veteran's wife's statements that the Veteran had apneas starting in October 1990 after he returned from his deployment, as well as his symptoms of daytime fatigue and drowsiness. In addition, J.N.'s statement reflects that the Veteran experienced symptoms of daytime fatigue, drowsiness, and apneas during service. Further, the June 2013 DBQ indicates that when the Veteran did not use his CPAP device, his OSA symptoms included daytime drowsiness, fatigue, and snoring. The Board notes that these symptoms are the same as the ones the Veteran, his wife, and J.N. described the Veteran experiencing during service prior to his OSA diagnosis and use of CPAP device. The above reflects that the evidence before the Board as to the issue of whether the diagnosed OSA is related to service consists of an inadequate negative VA nexus opinion and competent, credible lay testimony indicating that the Veteran has since service had symptoms that were later diagnosed as OSA. In these circumstances, a remand for another VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Rather, as the evidence is at least evenly balanced as to whether the Veteran's OSA had its onset in service, the Board will resolve the reasonable doubt created by this relative equipoise in the evidence in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for OSA is therefore warranted. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER Entitlement to service connection for OSA is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs