Citation Nr: 18150753 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-46 270 DATE: November 15, 2018 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The competent and credible evidence of record is at least in equipoise that the Veteran’s sleep apnea is causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1984 to October 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board also observes that the Veteran has perfected appeals for the issues of entitlement to service connection for a right shoulder disability, tinnitus, hearing loss, migraines, and a left knee disability. The Veteran requested a hearing on these issues and they are awaiting scheduling of a video conference hearing and will not be addressed in this decision below. Service Connection Generally, to establish service connection a veteran must show: “(1) the existence of a present disability; (2) 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for sleep apnea is granted. At the outset, the Board finds the Veteran has a current diagnosis of sleep apnea. See August 2016 Medical Treatment Record – Non-Government Facility. As such, the first element of service connection is met. The Board also finds that the Veteran presented credible supporting evidence that his sleep apnea manifested in service. For instance, although predominantly the service treatment records show that the Veteran had normal nose, mouth, throat, lungs, and chest, the Veteran did complain one time in August 1992 that he has frequent trouble sleeping since 1989. See February 1994 STR – Medical – Photocopy. Despite the complaint, no known cause was attributed to the Veteran’s sleep troubles. Id. In addition to the service treatment records, the Veteran submitted several third-party statements. In general, the third-party statements all attested that they witnessed the Veteran falling asleep during work activity, snoring loudly, gasping for air when asleep, and exhibiting lack of concentration and fatigue. See October 2014 Buddy/Lay Statement records and November 2015 Buddy/Lay Statement. Based on the service treatment records and the multiple third-party statements, the Board finds that the Veteran has provided credible evidence of in-service sleep apnea symptoms, to include snoring, gasping for air, and feeling tired. As such, the Board finds that the second element of service connection has been met. What remains for consideration is whether the Veteran’s sleep apnea is related to his active duty. The Veteran was afforded a VA examination in January 2015 with addendum opinions in July 2016 and October 2016. The January 2015 VA examiner opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of his opinion, the examiner explained that the Veteran was diagnosed with mild obstructive sleep apnea in May 2014, about 22 years after service. Further, the examiner stated that the 20- pound weight gain from 1992 to 2014 was a factor in causing the Veteran’s sleep apnea. As such the Veteran’s sleep apnea is less likely than not incurred in service. The July 2016 VA examiner opined that the Veteran’s sleep apnea is less likely than not caused by or incurred during service. In support of his opinion, the examiner stated that given the lack of documented sleep disorder or breathing problems during service, the 22-year gap between discharge and diagnosis, mild weight gain, and the mild nature of the Veteran’s sleep apnea suggests that the Veteran’s sleep apnea is less likely to be long standing in nature and more likely to be of relatively recent onset. The examiner also stated that the Veteran’s statement of having frequent trouble sleeping since 1989 could be attributed to a left-hand injury rather than sleep apnea as patients with sleep apnea generally have no problems falling asleep but rather they feel unrested after a night’s sleep. The October 2016 VA examiner opined that the Veteran’s sleep apnea is less likely than not incurred in active service. The examiner explained that weight gain and aging are the two most important causes of sleep apnea. The Veteran gained at least 11 pounds since separation and aged 22 years. The examiner stated that the aging of 22 years is significant as the aging alone is a cause of later sleep apnea. Further, the examiner stated that the mildness of the sleep apnea indicates that the sleep apnea was acquired recently and not 22 years ago. In contrast, the Veteran submitted medical opinions from Dr. M., Dr. S., a sleep medicine specialist, and Dr. L., Chief of Sleep Medicine Section at the VA San Diego Healthcare System. In September 2014, Dr. M. opined that based on the sleep apnea report from VA and the third-party statements, the Veteran most likely had sleep apnea during his active duty as he exhibited the same consistent complaints, signs, and symptoms of an individual with sleep apnea. See October 2014 Medical Treatment Record – Non-Government Facility. In February 2015, Dr. S. opined that the Veteran’s sleep apnea developed during the years of his active duty. Dr. S. explained that sleep apnea is influenced by multiple factors, such as the individual’s airway, aging, loss of tone in the upper airway, and weight gain. Sleep apnea does not come on suddenly but slowly develops and worsens usually over many years. Dr. S. also negated the January 2015 VA examiner’s opinion and stated that a weight gain of 19 pounds over 22 years is not likely to be the cause of the Veteran’s sleep apnea as the increase weight gain itself or obesity are not the most prominent factors as thin people and children also have sleep apnea. Further, Dr. S. stated that weight loss rarely cures sleep apnea. As such, Dr. S. opined that the Veteran’s weight gain over the years was not the cause of his sleep apnea. Based on the objective findings from the sleep study and the Veteran’s medical history and sleep history, Dr. S. opined that the Veteran’s sleep apnea developed while the Veteran was in active duty and that his condition went undiagnosed and untreated while in service. The Board notes that Dr. S. submitted another medical opinion in September 2015 reiterating and affirming her February 2015 medical opinion. In September 2016, Dr. L. opined that it is more likely than not that the Veteran’s sleep apnea started while in active military service. Dr. L., like Dr. S., noted that the service treatment records show that the Veteran complained of having sleep troubles in 1989. Based on this complaint and the third-party statements that the Veteran snored, grasped for breath, and exhibited sleepiness during the day, Dr. L. opined that the Veteran’s sleep apnea manifested in service. Further, Dr. L. stated that the Veteran’s sleep apnea was likely undiagnosed as the Veteran did not fit the stereotype of a patient who suffers from sleep apnea. However, current medicine shows that 30 percent of patients with significant sleep apnea have a normal body mass index. Further, Dr. L. explained that on average patients with sleep apnea will have symptoms for 10 years or more before seeking medical help. As such, based on the Veteran’s medical history and third-party statements, Dr. L. opined that it is more likely than not that the Veteran’s sleep apnea started in active service. The Board finds both the private and VA opinions probative and persuasive. As the Veteran presented positive private medical opinions that contradicts the VA examiners’ opinions, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s sleep apnea is causally related to his active duty service. As such, after resolving reasonable doubt in the Veteran’s favor, the Board finds the final element of service connection has been met. (Continued on the next page)   In conclusion, the Board finds that the Veteran has a current diagnosis of sleep apnea, and the medical evidence is at least in equipoise that the Veteran’s sleep apnea is causally related to his active duty. The Board thus finds that service connection for sleep apnea is warranted. 38 C.F.R. §§ 3.102, 3.303. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel