Citation Nr: 20002158 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-37 378 DATE: January 9, 2020 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT It is just as likely as not the Veteran’s sleep apnea began during his service, even if not caused or aggravated by a service-connected disability. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for sleep apnea. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1998 to March 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in August 2019 when it was remanded for further development. There has been the required compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for sleep apnea is granted. The primary basis of the Veteran’s claim is that his obstructive sleep apnea (OSA) is worsened, i.e., aggravated by his service-connected posttraumatic stress disorder (PTSD). In adjudicating a claim, however, the Board must consider all theories or potential bases of entitlement – so, here, including the notion the Veteran’s OSA is directly related to his service, not just secondary to his service-connected PTSD. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("...where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim."); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (In adjudicating a claim the Board must consider all potential bases of entitlement). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that, where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). The Veteran contends that his sleep apnea is related to or the result of his service, regardless of the specific reason for this attribution, so either directly incurred in service or secondary (caused or aggravated) by his already service-connected PTSD. See July 2018 Substantive Appeal to the Board (on VA Form 9). As the Board is finding that his OSA is directly related to his military service, in other words was directly incurred in service, additional discussion of entitlement to service connection on a secondary basis is unnecessary. Service connection may be established on direct basis for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) the presently-claimed disability; (ii) incurrence or aggravation of a relevant disease or injury in service; (iii) and a causal relationship (“nexus”) between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its competency and credibility to, in turn, determine its probative value in relation to other relevant evidence. Baldwin v. West, 13 Vet. App. 1 (1999). The Veteran was initially diagnosed with OSA in March 2016 after completion of a sleep study. That was some 10 years after his military service had ended. But service connection is still permissible in this circumstance of initial diagnosis after service if there is probative (meaning competent and credible) indication this condition originated during his service, dates back to his service, or is otherwise related or attributable to his service. 38 C.F.R. § 3.303(d).   The Veteran’s service treatment records (STRs) admittedly are unavailable. In this circumstance the Board has a heightened obligation to explain its findings and conclusions and to carefully consider applying the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board must also point out, however, that the O’Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board’s obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant’s medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O’Hare, 1 Vet. App. at 367). Here, notably, as the Veteran has not contended that he sought treatment or complained of sleep apnea in service, the absence of the STRs is not material to resolution of his appeal. See, e.g., September 2019 Correspondence from the Veteran making this concession. However, he has submitted lay testimony from two fellow service members describing his sleep impairment while in service. Both servicemen served with the Veteran and reportedly stayed in close quarters with him. One of his shipmates recounted there were countless times that he had to shake and disturb the Veteran’s rest as he was not breathing in his sleep. Another shipmate reported that he would constantly hear the Veteran snoring loudly and seemingly gasping for air.   There also is medical evidence of record indicating the Veteran’s OSA originated during his time in service. Namely, an August 2019 VA examiner opined that it is at least as likely as not the Veteran’s OSA is service-related. This VA examiner gave a comprehensive recitation of the pertinent medical and lay evidence regarding the Veteran’s OSA. This VA examiner considered (so acknowledged) the Veteran’s February 2017 statement that his OSA had begun around 2004, so during his time in service, and the lay statements from his wife and fellow service members who had served with him. As a basis for the favorable conclusion, the VA examiner reasoned that relevant lay statements from the Veteran, as well as his fellow soldiers, reported and observed sleep behavior compatible with that seen in individuals with OSA. When the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for versus against the claim, the claimant prevails; in other words, the Veteran is given the benefit of the doubt and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).   Therefore, here, resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to service connection for OSA is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.