Citation Nr: 1804460 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-17 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to April 2004 with an additional 3 years, 11 months and 16 days of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judges. Additional evidence has been received since the March 2014 statement of the case (SOC). Given the decision below resulting in a complete grant the Veteran's claim, the Veteran is not prejudiced by the Board's decision without waiver or issuance of a supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c). FINDING OF FACT The Veteran's sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The Veteran contends that his sleep apnea had its onset during his lengthy period of service. The Veteran underwent a sleep study in November 2008, approximately four years following his service, which confirmed obstructive sleep apnea. Moreover, a May 2009 medical record diagnosed him with obstructive sleep apnea. The Veteran submitted a May 2009 statement which indicated he snored in service and it got progressively worse and that he would occasionally wake up gasping for air. Similarly, his spouse submitted a May 2009 statement in which she indicated that the Veteran's snoring got progressively louder throughout his service and occasionally forced her to sleep in a separate bedroom. The Veteran was afforded an April 2011 VA examination in which the examiner noted the Veteran's obstructive sleep apnea diagnosis from 2008 and that his apnea symptoms were markedly improved by use of a CPAP machine. She concluded the Veteran's sleep apnea was not caused by service. She stated the only sleep study to confirm obstructive sleep apnea was performed after service and that his sleep issues during service were related to his chronic asthma and not sleep apnea. Thereafter, the Veteran was afforded an April 2017 Board hearing in which he indicated that his sleep apnea had its onset during service, despite being diagnosed four years after. A June 2017 private medical opinion was submitted in which the examiner concluded the Veteran's sleep apnea developed during his active duty service. The physician noted that she had been the Veteran's primary physician for the past fourteen years, since his retirement from service. She stated the Veteran's sleep apnea took at least 10 years to develop and given his documented obstructive sleep apnea and medical records, the disorder surely had its onset during service. She noted persistent snoring, observed breathing difficulties, poor sleep quality, and daytime sleepiness are all symptoms of obstructive sleep apnea. She stated it is not unusual for an individual to have symptoms of sleep apnea for years before being referred for a sleep evaluation. As the Veteran's sleep apnea took ten years to develop, she indicated, his condition had its onset during service. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's sleep apnea had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran was diagnosed with obstructive sleep apnea following service. However, he was in service for approximately twenty years and lay statements submitted by the Veteran and his spouse support that his sleep apnea symptoms were present and worsened during service. The April 2011 VA examiner determined the Veteran's sleep apnea was not caused by service and his sleep apnea symptoms were instead related to his chronic asthma. The Board does not find the opinion persuasive because there was no explanation of why the date of the sleep study was determinative as to when the disability actual came about. Also, no intercurrent cause was identified that would have caused the sleep apnea between the date of separation from service and the sleep study. In contrast, the Board finds the June 2017 medical opinion to be more persuasive. The physician concluded the Veteran's sleep apnea had its onset during service. She stated the Veteran's sleep apnea took at least 10 years to develop and given his medical record, surely had its onset during service. The June 2017 examiner thoroughly reviewed the record and supported her conclusions with well-reasoned analysis considering the relevant facts. Her opinion is afforded significant weight because it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, given the apnea symptoms the Veteran reported during service, the November 2008 sleep study, as well as the June 2017 positive private medical opinion, the Board finds the Veteran's sleep apnea had its onset during service. As a result, service connection for sleep apnea is warranted. ORDER Service connection for sleep apnea is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs