Citation Nr: 18150505 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-43 037 DATE: November 15, 2018 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, there is competent evidence the Veteran’s sleep apnea manifested 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, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1992 to July 2014. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. Sleep Apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends his in-service sleep symptoms of snoring, dry mouth, wheezing, and daytime fatigue were manifestations of his later diagnosed sleep apnea. Resolving reasonable doubt in favor of the Veteran, there is competent evidence showing the Veteran’s sleep apnea manifested in service. Service treatment records show that the Veteran underwent a sleep study in January 2014 with Dr. M. K. L. The Veteran complained of snoring, excessive daytime sleepiness, dry mouth, headaches, excessive sweating, aching, nasal congestion, and awakening. The Veteran’s girlfriend noted that he made bubble blowing sounds whenever he tried to fall asleep, intermittent gasping sensation and sound while he was sleeping. Dr. M. K. L.’s impression was snoring, non-restorative sleep, excessive daytime sleepiness, crowded oropharyngeal passage, redundancy in the neck, that were all signs and symptoms suggestive of possible obstructive sleep apnea. An April 2014 Report of Medical History for retirement noted that the Veteran reported frequent trouble sleeping. The Veteran indicated that he had insomnia and that he underwent a sleep study. The Veteran noted that the sleep study reported that he had borderline sleep apnea and restless sleep. The Veteran indicated that he had daytime fatigue and that he went to sleep early but that he woke up early. On a May 2014 Report of Medical History for retirement, in the comments, the Veteran was reported to have a history of insomnia. The Veteran was noted to have undergone a sleep study that resulted in borderline sleep apnea “but was seen to have restless sleep.” The Veteran was reported to be tired during the day, sleeping early, but waking up early. The Veteran’s insomnia was noted to being treated with trazodone, providing him with mild relief. The Veteran was reported to have persistent insomnia consistent with anxiety. The examiner again noted that the Veteran underwent a sleep study in 2014, that was negative for obstructive sleep apnea. The examiner indicated, “dx: insomnia disorder and primary snoring. NCD.” On a March 2015 VA Sleep Apnea examination, the Veteran was diagnosed with sleep disordered breathing. The Veteran reported that he was having disturbed sleep and that his girlfriend indicated to him that he snored and stopped breathing in his sleep. On an August 2015 CPAP titration report, Dr. J. M. O.’s impression was severe obstructive sleep apnea. In a September 2015 VA Medical Opinion, the examiner indicated that the Veteran’s claimed diagnosis of obstructive sleep apnea was not at least 50 percent attributable to events that occurred while the Veteran was on active duty. The examiner noted that there was a sleep study performed on January 30, 2014 that showed that the Veteran had a diagnosis of insomnia and restless sleep, but he did not have a diagnosis of sleep apnea. The Veteran contends he began having the symptoms of snoring, trouble sleeping, daytime fatigue, and daytime drowsiness his last two years in the military. Service treatment records show that the Veteran underwent a sleep study during service, complaining of snoring, excessive daytime sleepiness, dry mouth, headaches, excessive sweating, aching, nasal congestion, and awakening. The January 2014 sleep study reported that the Veteran’s girlfriend noted that he made bubble blowing sounds whenever he tried to fall asleep, intermittent gasping sensation and sound while he was sleeping. Lay evidence can be competent and sufficient evidence of a diagnosis, or to establish etiology, if the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board gives the Veteran’s reported in-service symptoms great probative weight. The Veteran is competent to report these symptoms, and these reported symptoms are credible, as they are consistent with his girlfriend’s contemporaneous statement and the January 2014 sleep study. The Veteran again reported these symptoms during a CPAP titration in August 2015 and he was subsequently diagnosed with severe obstructive sleep apnea by Dr. J. M. O. The Board recognizes the September 2015 VA opinion found the Veteran’s sleep apnea is not caused by or related to service. This opinion is inadequate because the examiner did not address the Veteran’s lay statements about his in-service symptoms and did not address whether these symptoms were as likely as not a manifestation of his later diagnosed sleep apnea. Notably, although the September 2015 VA examiner stated broadly that the Veteran underwent a sleep study during service in January 2014 which diagnosed insomnia and restless sleep, the examiner did not discuss the fact that it was these complaints that led the Veteran’s private physician to request additional diagnostic testing that resulted in the diagnosis of obstructive sleep apnea in August 2015. As such, the Board gives these opinions no probative weight. In summary, the Board finds there is competent and probative evidence showing the Veteran’s sleep apnea manifested in service. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel