Citation Nr: 18159328 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-07 472 DATE: December 18, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The probative evidence is in equipoise as to whether the Veteran’s obstructive sleep apnea was caused by or incurred during his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, obstructive sleep apnea was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to September 1984 and from February 1989 to February 1991. Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue involving the Veteran’s claim for service connection for obstructive sleep apnea. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Entitlement to service connection for obstructive sleep apnea The Veteran contends that service connection is warranted for obstructive sleep apnea. He alleges that he snored heavily during service, but that he was not aware that his snoring was a sleep disorder. He states that his snoring gradually increased in frequency and volume during military service, and that it has continued consistently since service discharge. He believes that his heaving snoring during service was an early manifestation of his later diagnosed obstructive sleep apnea. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran’s service treatment records are silent for any complaints of or treatment for snoring or obstructive sleep apnea during service. However, the Veteran’s wife has provided a lay statement explaining that she noticed the Veteran’s occasional snoring during the first year of their marriage, in 1969. She explained that, since that time, the snoring became more frequent and louder, and that it has continued regularly since that time. Post-service medical records show that the Veteran was first diagnosed with obstructive sleep apnea in 2011. In an October 2015 medical opinion, C. Spinweber, Ph.D., opined that the Veteran’s “sleep apnea developed during the years of his active duty.” Dr. Spinweber explained that sleep apnea does not come on suddenly, but that it develops slowly and worsens, usually over many years. She noted that the development of severe sleep apnea, as in the Veteran’s case, takes place over the course of an individual’s adulthood, usually beginning with snoring in a young man and gradually worsening with more frequent breathing pauses, more oxygen desaturation episodes, more sleep impairment, and cardiac involvement. She reported that it was her opinion that the Veteran “developed significant sleep apnea 30-35 years ago, during the time of his active service,” noting that the Veteran was told that he snored disruptively, was observed to have stopped breathing while sleeping, and experienced poor-quality sleep with fatigue during his active duty service. She explained that disruptive snoring, observed breathing difficulties, poor sleep quality, and daytime sleepiness are all symptoms of obstructive sleep apnea. She stated that her opinion was based upon clinical evaluation of the Veteran as well as a review of his medical records. In a November 2015 VA opinion, the VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was incurred in or caused by his active duty service. The examiner explained that the Veteran experienced a notable increase in weight after service discharge, and that his body mass index (BMI) increased from 24.7 (normal) at service discharge to 29.9 (borderline obese) at the time of diagnosis of sleep apnea. The examiner noted the Veteran’s lay statements of snoring during service, but explained that reports of snoring cannot differentiate primary snoring syndrome from obstructive sleep apnea. Ultimately, the examiner concluded that, given the post-service increase in weight, the length of time between discharge and diagnosis of sleep apnea, and the lack of documentation of symptoms in the service treatment records, it was less likely than not that the Veteran’s sleep apnea was caused by or incurred during his active duty service. In May 2016, Dr. Spinweber submitted a supplemental medical opinion, reiterating her opinion that the Veteran’s obstructive sleep apnea had its onset during his active duty service. Dr. Spinweber explained that the specific characteristics of the Veteran’s sleep apnea as documented in the sleep study and his sleep history and medical history allowed her to determine when the apnea began. She noted that the Veteran was genetically predisposed to develop sleep apnea, because his brother has sleep apnea, given the characteristics of the Veteran’s sleep apnea as documented by the sleep studies, and given his medical history, his sleep apnea had its onset during the time period of 1980 to 1985, during active duty service. She explained that the Veteran had symptoms of sleep apnea during active duty service, including disruptive snoring and trouble breathing while sleeping. Additionally, the development of gastroesophageal reflux disease, hypertension, and headaches are disorders known to be caused and exacerbated by untreated sleep apnea. Further, the Veteran has a long history of sinusitis and allergic rhinitis, which began during service, and that any chronic abnormality of the upper airways is a factor in the development of snoring, upper airway obstruction, and sleep apnea. The Board notes that the law mandates resolving all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that, in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is “definite etiology” or “obvious etiology.” Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” In Gilbert, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Here, the medical opinions of record appear to be both informed of the relevant facts, and reasonably explain the basis for the conclusions expressed. Although they arrive at opposing results, given the obligation to resolve reasonable doubt in favor of the Veteran, a basis upon which to find that obstructive sleep apnea began during service has been presented. Accordingly, with consideration of the benefit of the doubt, entitlement to service connection for obstructive sleep apnea is warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel