Citation Nr: 1803336 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-13 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1972 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in September 2016. FINDING OF FACT The Veteran's obstructive sleep apnea had its onset during service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that service connection for obstructive sleep apnea is warranted. The Veteran was diagnosed with obstructive sleep apnea in November 2010 and has continued to have this disorder throughout the appeal period. Although his service treatment records are silent for complaints of sleep apnea during service, the Veteran's wife, daughter and two fellow service members, H.C.B. and I.T.S., submitted written statements reporting their observations of the Veteran snoring, choking and gasping for air while sleeping, all of which they witnessed during the Veteran's active duty. The witnesses further reported observing the Veteran's complaints of headaches, slight memory loss and daytime tiredness during this period. These lay witnesses are competent to provide testimony concerning the symptoms they observed, and the Board finds their statements to be credible given their consistency with each other. See Layno v. Brown, 6 Vet. App. 465 (1994). Finally, two of the Veteran's treating VA physicians opined that the symptoms the Veteran was observed to have during service are at least as likely as not related to his current obstructive sleep apnea. In March 2014, VA physician E.T.S. stated that the history from the Veteran and his relatives, as well as soldiers he served with, "demonstrate that he had symptoms of sleep apnea while active duty military." Based on this information, Dr. E.T.S. opined that it is probable that the Veteran's sleep apnea started while he was on active duty. In October 2016, VA physician C.M. opined that the Veteran's current sleep apnea is more likely than not connected to his time on active duty because he had symptoms of snoring, apnea episodes, chronic fatigue, insomnia and daytime somnolence while on active duty. These opinions were based on a review of the Veteran's relevant medical history and provided a clear rationale for the opinions provided, and thus the Board finds them to be probative. Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (the three elements of service connection are (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or "nexus" between them). Also of record is a March 2014 negative nexus opinion provided by a VA examiner. The March 2014 VA examiner noted that it is possible for a person to have snoring and apnea episodes without meeting the diagnostic criteria for obstructive sleep apnea because a diagnosis of obstructive sleep apnea requires an apnea hypopnea index of five. Thus, the examiner reasoned that the Veteran's complaints of snoring and apnea or other symptoms that may be associated with obstructive sleep apnea during military service is "not sufficient and not diagnostic of sleep apnea;" therefore, it is less likely than not that the Veteran's obstructive sleep apnea diagnosed after military service was incurred in service. The Board does not find this opinion to be persuasive. In order for service connection to be established, it is not necessary for the Veteran to have been diagnosed with obstructive sleep apnea in service. The evidence of record need only show that it is at least as likely as not that the Veteran's current obstructive sleep apnea is related to the symptoms he was observed to have in service. In his opinion, the March 2014 VA examiner concedes that it is equally likely that the Veteran's symptoms in service were indicative of obstructive sleep apnea by stating that the treating VA physician "is accurate in reporting . . . that the [V]eteran may have had symptoms associated with sleep apnea during military service. . . ." Because the evidence is in equipoise on this issue, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b). ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs