Citation Nr: 18139701 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 15-04 095A DATE: October 1, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s sleep apnea obstructive sleep apnea began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2006 to November 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Denver Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in August 2017. A transcript of the hearing is associated with the Veteran’s claims folder. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea manifested in service. Establishing service connection generally requires (1) the existence of a present disability, (2) an 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. See 38 U.S.C. § 1110 (2012); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Board concludes that the Veteran has a current diagnosis of obstructive sleep apnea that began during active service, for the reasons discussed below. At the outset, the Board must determine if the Veteran has a present disability. The Veteran’s private treatment records from El Paso Sleep Center reflect a diagnosis of obstructive sleep apnea on October 1, 2011. During an August 11, 2017, Board hearing the Veteran reported that after being diagnosed with obstructive sleep apnea he was prescribed a continuous positive airway pressure (CPAP) machine. He reported that he has continued to use the CPAP since it was prescribed. The Veteran’s statement is supported by a VA sleep medicine report dated November 21, 2017, which indicates that the Veteran is continuing to receive medical treatment for obstructive sleep apnea. For these reasons, the Board concludes that the objective medical evidence of record indicates that the Veteran has a present disability of obstructive sleep apnea. The Board will next consider whether the Veteran’s presently diagnosed obstructive sleep apnea was incurred or aggravated in service. In support of his claim, the Veteran submitted a personal statement, along with lay statements from fellow service members A.G. and L.M. In an undated statement received by the RO on September 24, 2013, the Veteran claims that his “battle buddies” complained to him about his loud snoring. Further, the Veteran claimed that his fellow service members noticed him choking in his sleep. Additionally, the Veteran reported that some of his fellow service members did not want to sleep in the same area as him because his snoring would keep them awake. The Veteran noted that while he was in service he would feel tired and have frequent headaches during the day. The Board finds that the Veteran’s statements are competent, as he reported observable symptoms that he experienced, along with information related to him by fellow service members. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) ([L]ay testimony is competent, however, to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.”). Furthermore, the Board finds that the Veteran’s statement is credible, as there is no contradictory evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Finally, the Board concludes that the lay evidence should be afforded a high degree of probative value. In an undated statement received by the RO on July 12, 2013, A.G. reported that he deployed to Iraq with the Veteran. During the deployment, A.G. noticed that the Veteran snored and seemed to have difficulty breathing while sleeping. During the day, A.G. noticed that the Veteran seemed tired and was unable to complete his duties. When they returned from the deployment, A.G. and the Veteran were roommates. A.G. noted that he would occasionally need to sleep in the living room so he wouldn’t hear the Veteran snore. The Board finds that A.G.’s statements are competent, as he reported personal observations of the Veteran snoring and choking. See Barr, 21 Vet. App. at 307. Furthermore, the Board finds that A.G.’s statements are credible, as there is no contradictory evidence of record. See Buchanan, 451 F.3d at 1336. Finally, the Board concludes that A.G.’s statement should be afforded a high degree of probative value. In an undated statement received by the RO on July 12, 2013, L.M. reported he deployed to Iraq with the Veteran. During the deployment, the Veteran would snore so loudly that most of his fellow service members slept with headphones on. L.M. reported that he occasionally needed to wake up the Veteran because the Veteran sounded like he was choking. L.M. noted that during the day the Veteran would complain about being tired and would take naps whenever he had the opportunity. The Board finds that L.M.’s statements are competent, as he reported personal observations of the Veteran snoring and choking. See Barr, 21 Vet. App. at 307. Furthermore, the Board finds that L.M.’s statements are credible, as there is no contradictory evidence of record. See Buchanan, 451 F.3d at 1336. Finally, the Board concludes that L.M.’s statement should be afforded a high degree of probative value. In light of the Board’s determination that the lay statements from the Veteran, A.G., and L.M., are competent, credible, and highly probative, the Board concludes that the aforementioned lay statements are sufficient to satisfy the in-service incurrence element of service connection. See Shedden, 381 F.3d at 1167. The Board now turns to the final element of service connection, a nexus between the claimed disability and service. After considering statements from the Veteran, A.G., and L.M., regarding in-service symptoms of obstructive sleep apnea and continuous obstructive sleep apnea treatment following the Veteran’s diagnosis, and the close temporal proximity of the Veteran’s diagnosis to his active duty service, the Board finds that the evidence is at least in relative equipoise on the question of whether the claimed disability had its onset in service. The Board does acknowledge a June 2013 VA medical opinion in which the examiner opined that the Veteran’s obstructive sleep apnea was not related to active service. However, in rendering his opinion the medical examiner failed to consider competent and credible lay statements from the Veteran, A.G., and L.M. As the medical examiner failed to take into consideration all competent evidence of record, his opinion is of no probative value. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on inaccurate factual premise has no probative value). Affording the Veteran the benefit of the doubt, the Board finds that the criteria to establish service connection for obstructive sleep apnea have been met. See 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017); Shedden, 381 F.3d at 1167; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Glenn, Law Clerk