Citation Nr: 18156986 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-03 779 DATE: December 11, 2018 ORDER Entitlement to service connection for a sleep apnea is granted. FINDING OF FACT The Veteran’s sleep apnea began during his active duty service. CONCLUSION OF LAW The criteria for service connection for a sleep apnea are met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1994 to October 1998, and from May 1999 to May 2015. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is seeking entitlement to service connection for an obstructive sleep apnea. As discussed below, after a review of the evidence on record, the Board concludes that the Veteran’s current sleep apnea began in his active duty service, and it continued to the present day. First, the evidence on record shows that the Veteran is currently diagnosed with a mild sleep apnea. In March 2017, the Veteran has undergone a sleep study at a VA medical facility, in which he was found to have a mild sleep apnea. See March 2017 Sleep Study Results Notification. The Board finds the March 2017 sleep study results competent and credible medical evidence for the Veteran’s present sleep apnea disability. Next, the evidence on record shows that the Veteran was diagnosed with sleep apnea and received treatments during his active duty service. Initially, the Board notes that the Veteran’s medical entrance examination did not reveal any health issues. See August 1994 Report of Medical Examination; see also August 1994 Report of Medical History. The Board notes that the Veteran was diagnosed with a severe obstructive sleep apnea in December 2008. December 2008 Polysomnography Report; see also April 2009 ENT Clinic Note (reporting the Veteran’s recent diagnosis of mild to moderate obstructive sleep apnea). After a nocturnal polysomnography study, the Veteran started to use a Continuous Positive Airway Pressure (CPAP) machine. See December 2008 Polysomnography Report (Dr. R.I. recommended that the Veteran would benefit from using a CPAP machine); August 2009 ENT Clinic Note (reporting the history of the Veteran’s previous attempts to use CPAP machine); November 2016 Notice of Disagreement (the Veteran stating that he had used a CPAP machine while in service). In August 2009, the Veteran had undergone a uvulopalatopharyngoplasty (UPPP) to treat his sleep apnea. August 2009 Discharge Summary Report; February 2011 Referral Letter (noting surgical history of UPPP). The Board notes that the Veteran’s medical records consistently list sleep apnea as one of his active health problems from 2010 to 2012. In February 2013, a polysomnogram report provided that there was no evidence of clinically significant sleep apnea. February 2013 Polysomnogram Report. However, the Veteran continuously reported his sleep apnea in 2014 and 2015. See December 2014 Report of Medical History; February 2015 Report of Medical Assessment. The Board finds the above-mentioned evidence competent and credible to show that the Veteran’s sleep apnea began in his active service. Finally, the Board concludes that the Veteran has been continuously experiencing sleep apnea since his diagnosis in service. In October 2015, five months after his retirement from the military, the Veteran was afforded a VA examination on sleep apnea. The October 2015 VA examiner confirmed that the Veteran was diagnosed with an obstructive sleep apnea in 2008 after a sleep study. October 2015 Sleep Apnea DBQ. Significantly, the VA examiner noted that the Veteran had a current symptom of persistent daytime hypersomnolence, which is reported to be one of the symptoms attributable to sleep apnea. Id., at 1. The VA examiner also noted that the Veteran’s sleep apnea has a functional impact on his ability to work due to fatigue with physical exertion. Id., at 2. The Veteran continued to have sleep issues in 2016. See August 2016 E-Consult Sleep Apnea Outpatient Notes (the Veteran’s sleep issues complaints continued). Also, in March 2017, a VA doctor R.M., noted that the Veteran’s previous corrective surgical procedure for sleep apnea did not completely correct his sleep apnea issues. March 2017 PC Follow-up Visit Notes. It is clear to the Board that the Veteran’s current treating physician views the Veteran’s sleep apnea as an ongoing issue from the time of its initial diagnosis. Based on above, and resolving any reasonable doubt in favor of the Veteran, the Board finds that there is a nexus between the Veteran’s in-service sleep apnea diagnosis and his current sleep apnea condition. Consequently, the Veteran’s entitlement to service connection for a sleep apnea is warranted. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Kim, Associate Counsel