Citation Nr: 20044528 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 13-31 526 DATE: July 2, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for left knee disability is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, his diagnosed sleep disorder first manifested in service or was otherwise incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1976 to May 1986 and from April 2000 to March 2003. The Board remanded the issues of service connection for sleep apnea and left knee disability in a November 2017 Board decision. VA properly followed the remand instructions regarding the issue of service connection for sleep apnea but did not for the left knee disability. Stegall v. West, 11 Vet. App. 268, 271 (1998) Entitlement to service connection for sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board assesses the credibility and weight of all the evidence, including medical evidence, to determine its probative value; accounts for evidence which it finds to be persuasive or unpersuasive; and provides reasons for rejecting any evidence favorable to the claimant. The Board determines whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran maintains that his sleep apnea developed during service. The Veteran is currently diagnosed with sleep apnea through a sleep study in September 2009. He also currently uses a CPAP machine to treat his OSA. As such, he satisfies the first criteria for service connection of having a current disability. While there is no medical evidence that the Veteran suffered from sleep problems in service since the Veteran’s service treatment records (STRs) could not be found, the Veteran testified in the December 2016 Board hearing that he suffered from symptoms of sleep apnea and that people would tell him that he would be snoring and that he would stop breathing while he was sleeping. The Veteran also submitted statements from military colleagues who witnessed the Veteran sleeping, gasping for air, when he stopped breathing, and saw that the Veteran would fall asleep randomly during the day. In the Board hearing the Veteran explained that he never had his sleep apnea issues officially diagnosed in service because he was afraid that he might get discharged due to it. In a May 2014 private medical opinion, the examiner explained that the examiner is familiar with the Veteran’s current medical condition and his past medical history and opines that the Veteran’s OSA is more likely than not related to the OSA which occurred while he was on active duty. He claimed that the Veteran’s OSA developed early in his military career. In another May 2014 opinion, the examiner explained that the Veteran was being treated for sleep apnea through the examiner’s practice and that he feels more certainly than not that the Veteran’s sleep apnea occurred while the Veteran was on active duty status. In the June 2015 DRO hearing, the Veteran testified that when he was in his reserve component, a couple of soldiers woke him up telling him that he had stopped breathing and that they just wanted to make sure he was still alive. This occurred during an annual training exercise when he was activated into active duty for training. The Veteran further testified that he just played off the comments and did not think anything of them. VA treatment records starting from September 2009 diagnosed the Veteran with OSA and explained that he has had a history of stopping his breathing while sleeping and snoring. The Veteran reported that he had difficulty sleep, he would wake up at night, and had difficulty going back to sleep. He also reported that he was told that he snored and would pause breathing at night. He felt drowsy during the day due to his lack of sleep at night. The Veteran also reported that he has been having sleeping issues since returning from Iraq and Afghanistan in 2010. The Veteran submitted a Disability Benefits Questionnaire in January 2018 where the Veteran reported that he snored according to what his friends from military service told him. The examiner noted that the Veteran had symptoms of persistent daytime hypersomnolence and felt fatigued and tired if he did not use the CPAP. The examiner noted that the Veteran had a Mallampati score of three and a neck size of 18 inches. The examiner opined that the Veteran’s OSA impacted his ability to work because the fatigue and tiredness limited his concentration and ability to focus. The examiner opined that after reviewing the statements by the Veteran’s fellow service men, the examiner thought that the Veteran did have symptoms of snoring and witnessed apneas during service that are consistent with OSA. The Veteran reported that he did not go to sick call due to a fear of being medically released. He further explained that he did not seek treatment until after discharge. The examiner opined that the Veteran’s OSA is at least as likely as not incurred in military service as shown in the buddy statements and the Veteran’s account. In the November 2018 VA examination, the examiner noted that the Veteran has several risk factors, including the fact that he smokes two times a week, drinks wine with dinner, has an Epworth sleepiness scale of five, weight is 229 pounds, and neck circumference is 18 inches. The Veteran reported that he uses a CPAP machine. The examiner opined that the Veteran’s OSA did not impact his ability to work. The examiner further opined that the Veteran’s OSA was less likely than not incurred in or caused by service since the record is silent for a diagnosis or a complaint of a sleep disorder until 2009. Additionally, because the Veteran is male, 61 years old, is prescribed duloxetine, and occasionally drinks wine with dinner it is less likely as not that the Veteran’s OSA incurred in or was caused by service. The examiner opined that his OSA was most likely due to his risk factors, including an increase of 75 pounds from the time he entered service until his sleep study was performed. The examiner also opined that it was less likely than not that the Veteran’s OSA was caused by or aggravated by his headaches, depression, GERD, or hypertension. The Board finds that the evidence is in equipoise and resolving all doubt is in favor of granting service connection for the Veteran’s OSA. The Veteran contends that he incurred a sleep disorder during active service and experienced continuous disability due to the OSA since his service separation. While he did not have any STRs to show that he was diagnosed with OSA in service, he did submit lay statements by his friends in service who witnessed his snoring and apneas. Moreover, the Veteran submitted a medical opinion in January 2018 that incorporated the buddy statements into the analysis of whether or not the Veteran’s OSA began in service or not. The Board finds that the record evidence shows an etiological link between the Veteran’s current sleep disorder and active service. A combination of the Veteran’s testimony, the buddy statements, and the private medical examiner’s opinion regarding the Veteran’s OSA show the etiology of the Veteran’s OSA. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for OSA is warranted REASONS FOR REMAND Entitlement to service connection for left knee disability is remanded. Since the May 2019 Supplemental Statement of the Case (SSOC) and before the appeal was returned to the Board, the Veteran was warranted a new VA examination for his knees and attended many appointments regarding his knee problems through VA. Because there is information in the VA examination and the VA treatment records that pertain to the issue at hand, the Board must remand for VA to adjudicate the issue with these new evidence. The matters are REMANDED for the following action: (Continued on the next page)   Readjudicate the issue of service connection for left knee disability, incorporating the January 2020 VA examination and VA treatment notes submitted after the May 2019 SSOC. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.