Citation Nr: 18145293 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-38 191 DATE: October 30, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected disability of chronic maxillary sinusitis (with headaches) with cyst, is granted. FINDING OF FACT With resolution of any reasonable doubt in his favor, the Veteran’s OSA is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for OSA are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(d) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to June 1991. In October 2018, the Veteran testified at a Board hearing in front of the undersigned Veterans Law Judge via video-conference. This decision has been processed through the Board’s “One-Touch” program. A transcript of the hearing will be associated with the claims file at a later time. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Under the relevant laws and regulations, service connection will be granted for a disability that was caused or aggravated by a disease or injury in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) an in-service disease or injury; (2) a current disease or disability; and (3) a nexus between the in-service event and the current disease or disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Further, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Here, VA treatment notes dated as early as 2005 show complaints of sleep difficulty. VA treatment notes dated in 2011 refer to suspected sleep apnea based on the Veteran’s reported symptoms. It is not in dispute that the Veteran currently has obstructive sleep apnea, or OSA, as VA treatment records establish that he was diagnosed with the disorder in 2013 and he has undergone continuous treatment for OSA since the diagnosis. The Veteran’s service treatment records include no complaints of, treatment for, or objective findings of sleep apnea. Nonetheless, the Board finds that the evidence is in equipoise on the question of whether the Veteran’s OSA symptoms had their onset in service, have recurred since service, and have been attributed to the current diagnosis of OSA. During a VA outpatient visit in April 2013, the Veteran and his wife described the Veteran’s long history of loud snoring punctuated by periods of silence, awakening at night with episodes of breathlessness, awakening in the mornings with headache and dry mouth, and severe daytime somnolence. Examination revealed septal deviation, bilaterally, with moderately enlarged turbinates, and small tonsils. The physician noted “Symptoms of sleep apnea.” During a VA sleep study in July 2013, the Veteran was diagnosed with mild OSA. See Sleep Medicine Consultation dated July 8, 2013. The Veteran was afforded VA examinations in February 2014 and June 2015. The February 2014 VA examiner failed to provide the requested medical opinion. The June 2015 VA examiner opined that the Veteran’s OSA was less likely than not caused by or aggravated by his service-connected chronic sinusitis, and more likely than not due to obesity. However, the Board notes that the examiner failed to acknowledge previous lay statements of record made by the Veteran describing his long history of OSA symptoms. Additionally, as the Veteran pointed out, his OSA symptoms preceded his diagnosis of obesity. More recently, during the October 2018 Board hearing, the Veteran testified that he has since lost 28 pounds and still has OSA. These competent lay statements directly conflict with the examiner’s reasoning. Accordingly, the Board deems the June 2015 opinion inadequate and lacking in probative weight. Further development could be undertaken to obtain an additional medical opinion. However, the Board finds highly probative the lay statements of the Veteran and his spouse. During the October 2018 Board hearing, they testified that the Veteran has had loud snoring and breathing and sleeping difficulties since service. The Veteran also stated that the emergence of sleep apnea symptoms coincided with the onset of his service-connected sinusitis with headaches and cysts during service. The Board testimony is consistent with previous lay statements of the Veteran and his wife recorded in the VA treatment records. As laypersons, they are competent to report such observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, nothing in the record directly contradicts these lay statements, and the Board does not doubt the credibility of the statements. Additionally, the fact that the official diagnosis of sleep apnea was not made until July 2013 does not, in itself, preclude a finding of service connection, as probative evidence of record reasonably establishes that the Veteran’s OSA symptoms began in service, have recurred since service, and have been attributed to his current diagnosis of OSA. See 38 C.F.R. § 3.303(d). Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for OSA is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(d). The grant of service connection pursuant to 38 C.F.R. § 3.303(d) renders moot all other theories of entitlement. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel