Citation Nr: 1808169 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-22 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to September 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2014. In May 2014, the Board remanded the case for further development. In April 2015, the Board denied the appeal for service connection for sleep apnea. The Veteran appealed the Board's April 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the parties filed a Joint Motion to vacate and remand the April 2015 Board decision, and in an Order dated later in June 2016, the Court granted the parties' Motion. In August 2016, the Board referred the matter for a VHA expert medical opinion, which was provided in October 2016. In March 2017, the Board referred the matter for an independent medical expert opinion, which was obtained that same month. Other additional evidence has been received since the last supplemental statement of the case in October 2014; however, in view of the fully favorable disposition of this appeal, remand for RO consideration of the evidence is not necessary. FINDING OF FACT The Veteran's post-service diagnosed obstructive sleep apnea had its onset during active duty service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. Facts and Analysis The Veteran seeks service connection for a sleep disorder/sleep apnea, which he contends began during service. See Board Hearing Transcript, pp. 8-9. Service treatment records (STRs) contain no mention of any trouble sleeping at night or daytime sleepiness, but they do describe the Veteran as "overweight." See, e.g., STR dated July 26, 2001. In September 2002, the Veteran retired after 21 years of active duty service. In May 2005, the Veteran reported to VA with complaints of loud snoring, stopped breathing, waking at midnight, and daytime tiredness, at which time an initial sleep evaluation was done. At the time of that consult the Veteran weighed 235 pounds, and the provider noted that the Veteran had had a recent weight gain of 10 pounds. See VA medical record dated May 12, 2005. The diagnosis was sleep related disorder and the Veteran was referred for a sleep study. In June 2005, the Veteran underwent a sleep study at the William Beaumont Army Medical Center Sleep Disorders Center, whereupon he was diagnosed with Obstructive Sleep Apnea Syndrome and Primary Snoring. At the time of the sleep study the Veteran weighed 230 pounds. See June 29, 2005, William Beaumont Army Medical Center Polysomnography Report. In March 2010 (and again in November 2016), the Veteran submitted statements from two military buddies (J.H. and G.H.) who each recalled the Veteran as complaining about a lack of sleep while in service, and who also recalled the Veteran loudly snoring with breaks in his breathing during duty service. On VA chronic fatigue syndrome examination in January 2011, the examiner concluded that that the Veteran's chronic fatigue and insomnia was not caused by or a result of military service but was instead related to sleep apnea. See also July 2016 opinion from private General Internist, who averred that "it is more likely than not that the Veteran's current medical condition of Obstructive Sleep Apnea was probably caused by Obesity and Stress, and which likely began during the time of military service." This favors the claim. In May 2014, the Board remanded the matter for a VA examination, and in July 2014 the Veteran was afforded a VA respiratory examination. According to the examiner, the Veteran's obstructive sleep apnea was not related to service "because the evidence failed to show that service member would snore or any documented history of recurrent cessations during breathing that would suggest OSA while in service." This is probative evidence against the claim. Subsequently, in August 2016, the Board referred the matter for a VHA expert medical opinion, which was provided in October 2016. According to this physician (a VA pulmonary/critical care/sleep medicine expert), a history of snoring or witnessed apneic events during service "would have indicated a strong likelihood of sleep apnea during service." He then averred that as there was no mention in either of the 2010 buddy statements [which were the only witness statements at that time] of "hearing snoring or witnessing apneic (periods of cessation of breathing) events," there was not strong evidence of sleep apnea having started during service; and opined that the Veteran's "post-deployment weight gain accounted for [his] development of sleep apnea," which he stated had escalated to 278 pounds a few years after service. See October 2016 VHA expert medical opinion. However, this depiction of the Veteran's weight was inaccurate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Moreover, in November 2016 the Veteran augmented the record to include the aforesaid eyewitness accounts of the Veteran loudly snoring with breaks in his breathing during service. See November 2016 buddy statements from J.H. and G.H. There is nothing in the claims file that contravenes the veracity of these statements. Thus, in March 2017 the Board referred the matter for an independent (non-VA) medical expert opinion, which was obtained that same month. The opinion was by a board certified neurologist and sleep specialist. According to this physician, in view of the witnessed apneas together with the Veteran's body habitus and other clinical complaints, it is more likely than not that the Veteran's obstructive sleep apnea probably started during his active service. The Board finds this opinion, which was provided by an expert in the field of sleep disorders and which is consistent with the lay evidence and treatment records, to be dispositive as to the nexus element of the claim. The Board accordingly finds that the weight of the evidence favors the claim. This is particularly so when resolving reasonable doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea is warranted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs