Citation Nr: 1800117 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-11 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1991 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's obstructive sleep apnea had onset during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012). 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is seeking service connection for his obstructive sleep apnea, which he asserts began during active duty. As an initial matter, the Board notes that the record reflects a diagnosis of obstructive sleep apnea during the pendency of the appeal. As such, the Board finds that a current disability has been established for purposes of determining service connection. Accordingly, the question becomes whether the disability is related to service. The Veteran's service treatment records do not reflect a definitive diagnosis of sleep apnea; however, in September 2011, during active duty, the Veteran complained of difficulty sleeping, non-restorative sleep, and daytime sleepiness. A sleep study was conducted, and the clinician noted snoring, but indicated that complex testing would be needed in order to diagnose the Veteran. The Veteran has credibly asserted that he was unable to find the time to schedule the testing until after discharge. Also in September 2011, a clinician noted that apneas were indicated by the Veteran's respiration rate. The Veteran was definitively diagnosed with sleep apnea in September 2013, approximately 18 months after his discharge from active duty, and was prescribed a continuous positive airway pressure device. The Board notes that VA examinations were obtained in connection with this claim in October 2011, September 2012, and January 2014. The October 2011 examiner noted that the Veteran had been diagnosed with obstructive sleep apnea by sleep study one month earlier, but it is appears this conclusion was derived from the Veteran's comments regarding the history of his condition rather than review of the record. The examiner also described the Veteran's reports of trouble staying awake during the day, including at work and while driving. The examiner provided no further opinion. In September 2012, the examiner stated that sleep apnea had never been diagnosed, but noted the Veteran's complaints of excessive snoring, waking up during the night, and feeling tired during the day, as well as the reports of the Veteran's wife that he stopped breathing during the night. In January 2014, the examiner noted that the Veteran had been diagnosed with obstructive sleep apnea in September 2013, and opined that there was no medical evidence to support the Veteran's claim of sleep apnea during service. Upon review, the Board finds that the VA opinions should be afforded very little probative weight. The October 2011 examiner noted a diagnosis, but such diagnosis was apparently based on the Veteran's reports rather than objective evidence. The September 2012 examiner indicated only that the record did not reflect a diagnosis. Finally, the January 2014 examiner provided a conclusory statement that there was no medical evidence to suggest that sleep apnea was related to service, but did not provide a rationale for why the noted in-service symptoms, now associated with the Veteran's sleep apnea, did not indicate the onset of sleep apnea, nor for rejecting the Veteran's competent lay statements regarding the onset of his symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion). The mandate to accord the Veteran the benefit of the doubt is triggered when the evidence has reached a stage of balance. Weighing the evidence, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's obstructive sleep apnea arose during his active duty military service. Here, the Veteran's September 2011 service treatment records reflect reports of same type of symptoms that have now been attributed to the sleep apnea diagnosis, and indicate that clinicians suspected that the Veteran suffered from sleep-disordered breathing. Furthermore, apneas were observed during service. The Veteran's complaints were again noted soon after discharge from active duty, and the Veteran was definitively diagnosed with obstructive sleep apnea within approximately eighteen months of discharge. Furthermore, the Veteran has consistently and credibly asserted that his symptoms began in service, and he is competent to give evidence that he experienced the same symptoms upon which his obstructive sleep apnea diagnosis was based. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Given the little probative weight to be afforded to the VA medical opinions, the documented in-service complaints, and the fact that a veteran's lay statements may be sufficient evidence in any claim for service connection, the benefit of the doubt must be given to the Veteran. See 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."); 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Accordingly, resolving the benefit of the doubt in the Veteran's favor, service connection for obstructive sleep apnea is granted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs