Citation Nr: 20021910 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-25 918 DATE: March 27, 2020 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Obstructive sleep apnea had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2005 to February 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision by the Detroit, Michigan Regional Office (RO) of the United States Department of Veterans Affairs. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran underwent a VA Gulf War general examination in January 2013. The VA examiner noted that the Veteran complained of symptoms consistent with sleep apnea. The Veteran stated that his girlfriend states that he stops breathing at night and snores. He denied experiencing these symptoms prior to military service. He reported that he was tired during the day. The VA examiner noted that this portion of the Veteran’s claim was being referred back to the RO to be scheduled at a VA that can perform necessary testing and examination for sleep apnea. In December 2017, the Veteran submitted a private sleep study conducted in June 2017 which confirmed his diagnosis of obstructive sleep apnea syndrome. The Veteran submitted a September 2017 sleep apnea disability benefits questionnaire in support of his claim. The private examiner noted the Veteran’s diagnosis of obstructive sleep apnea and that the Veteran has been struggling with insomnia and daytime fatigue for years which is getting worse. The Veteran uses a CPAP machine for control of his sleep apnea. The Veteran submitted a lay statement from DM, who served with the Veteran in the 2nd Battalion 3rd Special Forces Group, Fort Bragg, North Carolina from 2006 to 2012. DM stated that he and the Veteran were good friends and spent many hours together, on and off work. DM stated that he knew the Veteran to be a “very “noisy sleeper” due to extremely loud snoring. DM stated that the Veteran would wake himself up from his snoring and that a regular complaint was waking up tired every day, regardless of how much sleep he got. In January 2018, a VA opinion determined that it was less likely than not that the Veteran’s obstructive sleep apnea was proximately due to or the result of his service-connected PTSD; direct service connection was not addressed, though the description of the condition by the examiner was consistent with the competent lay reports. The Board finds the lay statements of the Veteran and DM to be credible and sufficient to establish that the Veteran’s sleep apnea had its onset during service and that his symptoms continue to date. The symptoms of sleep apnea, including snoring and tiredness during the day are observable symptoms which are capable of being identified by the Veteran and DM as lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Doctors have associated such in this case with the diagnosis of sleep apnea. Therefore, the Board finds these lay statements are sufficient to establish a nexus between the Veteran’s obstructive sleep apnea and his time in service. Accordingly, service connection for obstructive sleep apnea is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.