Citation Nr: 20008280 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 17-24 345 DATE: January 31, 2020 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his sleep apnea was incurred in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 1978 to November 1981 and April 1983 to June 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2019, the Veteran testified at a videoconference Board hearing before the undersigned; a transcript of the hearing is of record. Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.156 (a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection for sleep apnea is granted. In August 2014, the Veteran submitted a claim for service connection for sleep apnea, to include as secondary to his service-connected major depression. As will be discussed below, the Board is granting service connection on a direct basis, therefore, service connection on a secondary basis need not be discussed. Initially, a July 2013 private medical record reflects that the Veteran was diagnosed with mild obstructive sleep apnea. During the December 2019 Board hearing, the Veteran testified that he started having problems sleeping while he was on active duty. Specifically, he testified that he “had a lot of sleep issues then, but I just didn’t understand what they were, you know, snoring at night, stop breathing.” He further testified that his wife complained about him not breathing and she would go sleep in a different room because his snoring was so loud. The Veteran also testified to daytime fatigue, sometimes falling asleep at red lights. He was scared to tell anybody for fear of being kicked out of the military. The Veteran further testified that he continued to have these symptoms after discharge and was encouraged to have a sleep study while undergoing post service mental health treatment. The Board finds that the Veteran’s assertion of having daytime fatigue, falling asleep at red lights while driving, constant snoring, and breathing difficulties while sleeping since service, is competent, as they are symptoms that he personally experiences and can describe without specialized medical education. The Board also finds his statements and testimony credible. The question remaining for the Board is whether the evidence establishes that the Veteran’s diagnosed sleep apnea was incurred in or is otherwise related to service. While the Veteran’s service treatment records (STRs) are silent for sleeping trouble or a diagnosis of sleep apnea, the Veteran submitted an August 2015 opinion from his private psychologist, who opined that the Veteran had been suffering from sleep apnea for over 30 years, but it had not been officially diagnosed until July 2013. He further opined this was due to a lack of a full understand of sleep disorders in the medical community during the 1990s. The Board notes that this psychologist has been treating the Veteran since 2006 and has reviewed the Veteran’s STR’s and post-service medical records in preparation for his opinion. Thus, the Board finds his opinion probative as to whether the Veteran’s sleep apnea incurred in or otherwise related to service. In addition, the Veteran submitted a credible statement from his wife of 44 years. She stated that when the Veteran would return home from deployment, “while sleeping, he would have pauses in his breathing. The pauses would last from a few seconds to a few minutes for each episode. He has a choking or snorting sound as his breathing resumes.” See October 2019 Wife’s Statement. The Board finds the Veteran’s wife’s statement to be credible and competent as it is also based on observable events that she can describe without specialized medical education. The Veteran also provided a medical opinion in October 2019 from N.Y.E, D.O. She opined that the Veteran’s sleep apnea was at least as likely as not incurred in active duty. The doctor stated that she reviewed the Veteran’s June 2013 sleep study report, medication lists, medical records, and statement from the Veteran’s wife, and ultimately concluded that the Veteran’s symptoms are ongoing and have been consistent as shown by snoring and witnessed apnea. The Board notes that record contains an August 2014 VA medical opinion, in which the examiner opined that the Veteran’s sleep apnea was less likely than not related to his service-connected depressive disorder. This negative nexus opinion provides an analysis of the Veteran’s sleep apnea on a secondary service connection level and does not provide an etiological opinion for direct service connection. (Continued on the next page)   In this case, there is no medical opinion evidence against the claim for service connection on a direct basis. Further, the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, the Board resolves all reasonable doubt in the Veteran’s favor, and the claim for service connection for sleep apnea is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Briana Cavallaro, 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.