Citation Nr: 18159017 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-67 545 DATE: December 18, 2018 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, obstructive sleep apnea developed during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.302, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2004 to August 2016. Entitlement to service connection for sleep apnea The Veteran contends that she developed sleep apnea during active service or, alternatively, that her sleep apnea is secondary to her service-connected posttraumatic stress disorder (PTSD). Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The question for the Board is whether the Veteran has a diagnosed sleep apnea condition incurred or aggravated during active military service or is secondary to a service-connected disability, namely, PTSD. After a thorough review of the evidence, and giving the benefit of the doubt to the Veteran, the Board finds that service connection for sleep apnea is warranted on a direct incurrence basis. As an initial matter, a sleep study in November 2017 confirms a diagnosis of mild obstructive sleep apnea. The Veteran’s service treatment records (STRs) also show numerous complaints of sleeping problems including nightmares, problems falling asleep and staying asleep, (e.g. July 2013) and that the Veteran was prescribed medication to assist with sleeping. In April 2016, the Veteran requested a sleep study related to problems during sleep such as snoring and not sleeping well. The sleep study was never administered during active service. The Veteran was afforded a VA general medical examination in January 2017 and underwent an additional VA examination in June 2017. However, these examiners failed to provide a diagnosis of sleep apnea and, consequently, did not provide etiological opinions. As such, the Board finds that these opinions are of no probative value as the Veteran clearly has a current diagnosis of the claimed disorder. The Veteran was reexamined by VA in December 2017. The examiner confirmed the diagnosis of sleep apnea and opined that the Veteran’s sleep apnea was not related to service because the Veteran’s STRs did not contain “diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty.” The examiner repeated the prior opinion that the symptoms reported were “not pathognomic for sleep apnea.” Following the administration of the December 2017 VA examination and in support of her claim, the Veteran submitted several lay statements attesting to the in-service sleeping problems. A December 2017 statement from a fellow soldier and paramedic for over 20 years, M.H., who chronicled her impression of the Veteran’s history of sleeping problems. This soldier pointed out that the Veteran was often sleepy at work, and because of this sleepiness, she had a motor vehicle accident in 2008. This soldier also noted that she and the Veteran became roommates for more than a year around the year 2009 during which time she observed the Veteran gasping for air during her sleep or stopping breathing while asleep, in addition to the daytime sleepiness. A statement from J.M., who stated that he was in a romantic relationship with the Veteran since the year 2010, indicated that he personally observed the Veteran’s attention problems, breathing cessation during sleep, daily excessive sleepiness, insomnia, and irritability. J.M. also noted that he had attended a medical appointment with the Veteran prior to her release from active duty at which the medical provider informed the Veteran that the requested sleep study would have to be performed by VA after her separation from service for reasons unclear to the Veteran or J.M. A statement from T.B., also a fellow solider, related that she observed the Veteran during their deployment to Afghanistan. The Veteran reportedly had breathing issues during sleep such as stopping breathing and gasping for air, as well as excessive daytime sleepiness, and irritability. Thereafter, the Veteran was provided an additional VA examination in June 2018. At that time, the VA examiner again noted that the symptoms previously related to him were not pathognomic for sleep apnea, and stated that he had reviewed the buddy statements in “the previous opinion.” However, the Board here notes that the previous VA opinion was dated December 8, 2017 and the RO received the three buddy statements on December 20 and 21, 2017. The Board notes the VA examiners collectively failed to adequately consider and address the Veteran’s competent reports of suffering from persistent and recurrent symptoms of sleep apnea since, which was set forth during the appellate period. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan, 451 F.3d at 1336. This deficiency renders the findings of the December 2017 and June 2018 VA examiners incomplete, and the Board accords the opinions no probative value. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In July 2018, VA obtained an additional opinion regarding sleep apnea. The examiner noted that the Veteran has a diagnosis of mild obstructive sleep apnea, dated November 2017, and that the Veteran uses a CPAP machine for the condition. The examiner noted that because the sleep study was based only on pulse oximetry, the study was not definitive because a more formal sleep study generating an AHI score was recommended. The examiner opined that the Veteran’s sleep apnea is less likely than not secondary to PTSD, although PTSD “may complicate the problem.” The Board notes that the examiner did not provide an opinion related to aggravation of sleep apnea due to PTSD as requested by the RO. As such, the Board also affords this opinion no probative value as the opinion provided is inadequate because it does not fully address the appropriate legal criteria in this matter. Despite the deficiencies in the multiple VA examinations, the Board finds that service connection is warranted for sleep apnea. The Veteran claimed sleep issues during active service and requested a sleep study at that time, which was not done. The Board notes that the record also reflects the Veteran served 12 years in active service in a health profession military occupational specialty. The Veteran made a claim on the day of separation from service for service connection for sleep apnea. Thereafter, while the initial medical examination in January 2017 noted possible sleep apnea symptoms, the Veteran was not provided a sleep study until 15 months after separation from active service. Additionally, the Veteran has provided three lay statements from fellow soldiers, at least one of whom is a medical professional, describing the history of the Veteran’s sleep issues. The Board finds that the competent evidence of record confirms the Veteran has experienced symptoms commonly associated with sleep apnea during her service and on a continuous basis since, which was eventually diagnosed as sleep apnea. Further, she and the other lay witness are competent to report the existence of snoring, difficulty breathing, day time sleepiness, etc., since it is within the realm of personal or firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). See also 38 C.F.R. § 3.159(a)(1) versus (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). (Continued on the next page)   Moreover, there is no reason to doubt the credibility of the lay statements as the evidence of record confirms a diagnosis of sleep apnea. As such, the Board finds the lay evidence is both competent and credible and, therefore, ultimately probative. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). Therefore, service connection for sleep apnea is warranted. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel