Citation Nr: 18149730 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-26 946 DATE: November 13, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Obstructive sleep apnea first arose during the Veteran’s active duty 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 had active duty service in the United States Marine Corps from November 1987 to November 1991 and in the United States Army from September 2008 to October 2009. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to service connection for obstructive sleep apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be (1) a competent diagnosis of a current disability;(2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has been largely consistent in his contentions that the sleep apnea that was diagnosed shortly after his most recent period of active duty service first began to manifest while he was deployed to Iraq. In an October 2018 brief and during the hearing before the undersigned, his representative argued that the competent evidence of in-service reports of sleep-related symptoms coupled with the diagnosis of sleep apnea that was given shortly after his separation from active duty represent probative and credible evidence that the criteria for service connection for sleep apnea have been met. The Board ultimately agrees. At the outset, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea. The Veteran’s treatment records indicate he first reported sleep-related symptoms to treating VA clinicians in November 2009 at a primary care initial evaluation conducted roughly six weeks after his separation from active duty. At that time, he stated that he was not sleeping as well as he would like and would awaken several times per night. He was referred to a neurology consultation at a VA sleep disorder clinic in Feb 2010. There, he noted that he continued having difficulties getting a good night’s sleep and would awaken three to four times per night. He stated further that his difficulties had worsened since their initial onset in Iraq and that he had initially attributed sleep-related symptoms he was experiencing on active duty to his erratic schedule during his deployment. Other sleep-related symptoms endorsed by the Veteran at that time included loud snoring, waking up gasping for air, and respiratory pauses that had been witnessed by the Veteran’s wife. The Veteran finally underwent a split-night polysomnogram in June 2010 at a VA facility at which he was diagnosed with severe obstructive sleep apnea with significant improvement with CPAP therapy. As this clinical record represents probative, competent, and credible evidence that the Board finds conclusively establishes the presence of a current disability, the Board will turn to the central question of this claim of whether the Veteran’s sleep apnea first arose during active duty service. A review of the contemporaneous service treatment records, however, fails to uncover any evidence that the Veteran reported sleep-related symptoms at any point during his deployment. In a pre-deployment health questionnaire completed in October 2008, the Veteran indicated that he was in excellent health and denied any medical problems. The Veteran also completed a post-deployment health questionnaire in September 2009 after his departure from Iraq in which he noted that his health was about the same as before he had deployed and specifically denied being bothered by problems sleeping or still feeling tired after sleeping. This competent in-service denial of sleep-related symptoms noted in the Veteran’s service records weighs against a finding that his sleep apnea first manifested while he was serving on active duty. However, an absence of contemporaneous service treatment records documenting in-service complaints or treatments is not fatal to a claim for service connection. Savage v. Gober, 10 Vet. App. 488 (1997). Specifically, as explained above, the Veteran sought treatment for sleep-related symptoms roughly two months after he departed Iraq at a November 2009 VA intake evaluation which ultimately led to the Veteran’s diagnosis of sleep apnea within a year of his separation from service. Although obstructive sleep apnea is not among the “chronic” diseases which may be granted service connection on a presumptive basis pursuant to 38 C.F.R. §§ 3.307 and 3.309(a), the Board finds that the extremely short gap between the Veteran’s separation from service and his documented complaints of sleep-related symptoms lends significant weight to his current statements that he experienced symptoms such as snoring, frequent awakenings, and pauses in his breathing while in service. Moreover, the claims file also includes an additional post-deployment health re-assessment completed in January 2010 in which the Veteran reported symptoms of problems sleeping or still feeling tired after sleeping which he identified as deployment-related concerns. Similarly, the record also contains a September 2018 declaration from P.H., a servicemember who served with the veteran in Iraq and was roommates with the Veteran from March 2009 to August 2009. In that statement, P.H. confirmed having observed the Veteran frequently waking up during the night, snoring loudly, and gasping for breath which was so loud that it would wake P.H. up. The Board finds no reason to doubt the credibility of P.H. and notes that he is competent to report these observable sleep-related difficulties. The Board also finds it highly probative that the symptoms P.H. described mirror those that the Veteran’s treating clinician indicated were concerning for sleep apnea in a February 2010 treatment note. (Continued on the next page)   In sum, the record indicates that there was an extremely short gap between the Veteran’s departure from Iraq and his report of sleep-related symptoms that led to a diagnosis of sleep apnea within a year of his departure from Iraq. Taken with the competent, probative, and credible statement from P.H. documenting in-service symptoms that are concerning for apnea, the Board finds that the evidence is at least in equipoise with respect to the issue of whether the Veteran’s current sleep apnea first arose during active duty service. As such, the Board finds that the criteria for service connection for obstructive sleep apnea have been met and the Veteran’s claim must be granted. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel