Citation Nr: 18143969 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 18-25 500 DATE: October 22, 2018 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s obstructive sleep apnea had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 2003 to October 2015. His decorations include the Navy and Marine Corps Commendation Medal with Combat “V.,” and two Combat Action Ribbons. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Entitlement to service connection for sleep apnea. The Veteran maintains, in essence, that he has obstructive sleep apnea that began in service. He says that he requested a sleep study at the time of his service separation, but was told that VA would provide the service later, following his discharge. He reports that he immediately asked for a consult upon being enrolled for VA care in September 2016, that a sleep study was performed in June 2017, and that it revealed obstructive sleep apnea. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). 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). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is no dispute that the Veteran has obstructive sleep apnea. The report of a June 2017 VA sleep study clearly shows that he has been diagnosed with the condition. As to in-service incurrence and nexus, the Board finds that the evidence supports the Veteran’s claim. His service treatment records reflect that he reported difficulty with sleep on multiple occasions. In January 2013, for example, he reported getting four hours of sleep per night during the past month, waking up in the middle of the night or early morning once or twice per week. In October 2013, he reported feeling tired or having low energy during the past month. In November 2013, he reported difficulty staying asleep and waking tired, with an average of six hours per sleep per night. In July 2015, he complained of a history of frequent trouble sleeping. A review of post-service medical records reflects that the Veteran again complained of sleep issues in September 2016. He reported chronically poor sleep and snoring in November 2016. Following a sleep study conducted in June 2017, as noted above, he was diagnosed with obstructive sleep apnea. In the Board’s view, the evidence of sleep issues during service, combined with the Veteran’s competent and credible statements to the effect that he requested a sleep study at the time of his separation from service, and that he continued to experience problems with sleep up until the time of his diagnosis in June 2017, is sufficient to support his claim. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal is granted. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel