Citation Nr: 19166311 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-07 746 DATE: August 27, 2019 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from July 1974 to July 1994. 1. Entitlement to service connection for sleep apnea. To establish service connection for a disability, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran asserts that his sleep apnea had its onset in service. The Veteran has a current diagnosis of sleep apnea. See December 2015 Private Treatment Notes. The issue that remains disputed is whether the Veteran’s sleep apnea had its onset in service. To this end, the evidence is conflicting. The Veteran’s service treatment records are silent for complaints of or treatment for sleep apnea. Private treatment records indicate the Veteran underwent a sleep study in 2015 and was diagnosed with sleep apnea. In a December 2015 letter, Dr. J.A.L. opined that the Veteran’s symptoms and complications of obstructive sleep apnea (OSA) began during his period of active duty. Dr. J.A.L. noted that the Veteran reported snoring and fatigue during active duty. Dr. J.A.L. also noted that the Veteran’s wife also reported snoring and periods of apnea when the Veteran was on active duty. Dr. J.A.L. stated, “At the time, his symptoms of OSA and poor sleep quality were attributed to being overworked by his duty schedule. It is well known that untreated OSA can lead to fatigue due to intermittent arousals at night.” Dr. J.A.L. further explained that the Veteran’s nonservice-connected hypertension, diabetes mellitus, and gastroesophageal reflux disease (GERD) are potentially indicative of the Veteran’s untreated sleep apnea. Dr. J.A.L. indicated that sleep apnea is influenced by aging and weight gain; however, it does not come on suddenly but slowly and develops and worsens over many years. Dr. J.A.L. reported that the Veteran’s clinical history is highly characteristic of people with sleep apnea and was not recognized during his active duty. Dr. J.A.L. submitted an additional positive nexus opinion in June 2016. Dr. J.A.L. reported that the Veteran reported snoring and fatigue during service. “It is my opinion as a pulmonary specialist, [sic] the above evidence convinces me it is quite probable that although [The Veteran’s] OSA was not diagnosed until after active military duty has ended, he began suffering from that disorder while he was still on active duty . . . and that disorder continued to the present day.” The Veteran also submitted several statements from his wife, and siblings indicating that the Veteran snored loudly while on active duty and would make choking noises and gasp for air. See December 2015 Correspondence. Similarly, in an April 2017 correspondence, a fellow servicemember indicated that he served with the Veteran and saw the Veteran snore and gasp for air while sleeping. Of record is also a December 2016 VA medical opinion. The examiner opined that it was less likely than not that the Veteran’s sleep apnea did not have its onset in service. The examiner reasoned that the Veteran was diagnosed with sleep apnea via sleep study in July 2015 with an AHI of 12.3, which shows mild sleep apnea. The Veteran was diagnosed with sleep apnea 19 years after separation. The examiner noted that the Veteran’s service treatment records do not show any sleep disordered breathing and his exit examination did not endorse any symptoms consistent with sleep apnea. The examiner further noted that while sleep apnea can take many years to develop this is less likely in a patient with mild sleep apnea. Therefore, given the mild sleep apnea score, 19-year gap between discharge and diagnosis and no evidence of sleep disorder breathing in service it is less likely than not that the Veteran’s sleep apnea was caused by or incurred in service. When reviewing conflicting medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). (Continued on the next page)   Here, the Board finds both the VA examiner and Dr. J.A.L. competent to render the given medical opinions and both opinions are deemed probative. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds entitlement to service connection for sleep apnea is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.