Citation Nr: 18154277 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-59 285 DATE: November 29, 2018 ORDER Entitlement to service connection for sleep apnea syndromes is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence is at least in relative equipoise as to whether his current disability of sleep apnea syndromes was incurred in or otherwise related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea syndromes are met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2009 to June 2013. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2015 rating decision issued by the Department of Veterans Affairs (VA). See May 2016 Notice of Disagreement (NOD); November 2016 Statement of the Case (SOC); November 2016 Substantive Appeal (VA Form 9). Entitlement to service connection for sleep apnea syndromes. The Veteran asserts service connection for sleep apnea because he was diagnosed with sleep apnea within a year after his separation from service. See May 2016 NOD. The Veteran also asserts that his service connected spine injuries made exercising difficult, which resulted in weight gain that caused his sleep apnea. See November 2016 Form 9. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As an initial matter, the Board finds that the Veteran’s sleep apnea is not one of the chronic diseases listed at 38 C.F.R. § 3.309(a) that would allow for a presumptive service connection for diseases that manifest to a compensable degree within a year after separation of service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). However, the Board finds that the evidence is in relative equipoise as to whether there is a direct service connection for Veteran’s current disability of sleep apnea syndromes. The Board finds that the Veteran has a current disability of sleep apnea syndromes, diagnosed as borderline mild obstructive sleep apnea with significant excessive daytime sleepiness. See April 2014 VA treatment record. The Board also finds that the Veteran experienced weight gain and sleep problems while in service. See November 2008 and April 2013 Service treatment records; April 2013 Physical Evaluation Board Proceedings. Finally, the Board finds that the June 2018 private treatment provider opinion from J L M, M.D., M.P.H., establishes a medical nexus between the Veteran’s mild obstructive sleep apnea and service. Dr. J L M opined that the Veteran’s obstructive sleep apnea developed because of rapid weight gain during active duty, and that this is more likely than not related to service. Her opinion is consistent with the medical treatment evidence showing weight rapid weight fluctuation and gain. The Veteran’s medical examination at enlistment shows he weighed about 261 pounds, with no remark about a sleep apnea syndrome. See November 2008 Service treatment record; 38 U.S.C. §§ 1111. The Veteran’s weight then fluctuated between 240 to 282 pounds during service, with a final weight around 275 pounds at separation. See March 2010 and February 2012 Service treatment records; April 2013 Physical Evaluation Board Proceedings. Dr. J L M is a medical professional whose opinion is based on a review of the Veteran’s history and a sleep study that she performed. The Board finds that the opinion is entitled to probative weight. The Board recognizes the October 2016 VA examiner opined that it is less likely than not that the Veteran’s current diagnosis of mild obstructive sleep apnea was incurred in or caused by service. See October 2016 VA examination. The VA examiner’s rationale is there is no evidence of a diagnosis or treatment for sleep apnea during service, and that a diagnosis by polysomnography is the diagnostic standard for obstructive sleep apnea. Id. However, like Dr. J L M, the VA examiner opined that obesity is a risk factor for obstructive sleep apnea. See id. The VA examiner did not address whether the Veteran’s weight gain during service could show a medical link to his current diagnosis for obstructive sleep apnea. While the October 2016 VA examiner’s opinion raises a reasonable doubt, the Board resolves all doubt in favor of the Veteran. The Board, therefore, finds that the evidence is in relative equipoise and that service connection for a disability of sleep apnea syndromes is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the Board finds the Veteran is entitled to service connection for sleep apnea syndromes on a direct basis, Veteran and his representative’s contentions that service connection is also warranted on secondary basis is moot and not adjudicated by this decision. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel