Citation Nr: 18152916 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-29 498 DATE: November 27, 2018 ORDER Entitlement for service connection for sleep apnea is granted. FINDING OF FACT Sleep apnea arose in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 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 from May 2008 to May 2013. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Service Connection The Veteran claims service connection for sleep apnea. Service connection may be granted 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(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 (Fed. Cir. 2007). Lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. at 307-09 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Service treatment records do not reflect any symptoms of or treatment for any sleep-related disability. VA treatment records reflect that in September 2013 the Veteran reported suffering from frequent fatigue, and the Veteran’s spouse reported witnessing apnea and snoring while the Veteran was sleeping. The treating medical personnel noted that no prior sleep study had been completed. The Veteran underwent a sleep study in November 2013, which revealed mild obstructive sleep apnea. The Veteran underwent a VA examination in July 2014. The VA examiner opined that it was more likely than not that his sleep apnea arose during active duty. This opinion was based on the rationale that the Veteran reported in-service snoring and daytime somnolence, and the examiner’s mistaken belief that there was a positive sleep study done while the Veteran was in-service. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s sleep apnea arose in service. Although the July 2014 VA examiner’s opinion included an incorrect assertion that the Veteran obtained a positive sleep study while in service, the examiner’s mistake is not dispositive. The examiner’s opinion provides an otherwise probative rationale for their finding that it is at least as likely as not that the Veteran’s sleep apnea arose in-service. The examiner opines that the snoring and daytime somnolence reported by the Veteran as occurring in service indicates that sleep apnea arose in service. While there are no records indicating snoring or daytime somnolence in the Veteran’s service treatment records, the Board finds the Veteran’s statements regarding his observable symptoms during his time in service as credible. Furthermore, the Board notes that the Veteran’s reports of symptomatology suggestive of sleep apnea were made to a VA medical provider within four months of his separation from service. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s sleep apnea arose in service, and service connection is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Capes, Law Clerk