Citation Nr: 21000178 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-20 297 DATE: January 4, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence of record establishes that 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, 1154, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1965 to October 1968, from January 1983 to May 1983, from March 1991 to January 1992, December 1995 to August 1996, from November 1997 to March 1998, and from August 1998 to January 2003. He served in the Republic of Vietnam and Bosnia and his many decorations include the Bronze Star Medal with Combat Distinguished Valor Device and Special Forces Tab. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated December 2014, issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran’s appeal has previously been before the Board. In November 2018, the Board remanded the Veteran’s sleep apnea claim to the AOJ for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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, 1167 (Fed. Cir. 2004). 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). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for sleep apnea The Veteran seeks entitlement to service connection for sleep apnea. Following a thorough review of the record, the Board finds the evidence warrants a finding of entitlement to service connection for sleep apnea. The Veteran is alternatively claiming that his sleep apnea is secondary to his service-connected psychiatric disability. However, as the Board is granting the Veteran’s claim for sleep apnea based on the theory of direct service connection, the Board finds that it is not necessary to discuss the theory of secondary service connection. As an initial matter, the Board finds that the Veteran has satisfied the first element of service connection, a current disability. The Veteran’s September 2019 VA examination shows the Veteran has obstructive sleep apnea that was diagnosed in June 2014. See VA Examination dated September 2019. Evidence from the Crestwood Medical Center, dated June 16, 2014, provided a polysomnography utilizing an in-lab sleep monitoring system showing that the Veteran meets the criteria for obstructive sleep apnea (OSA) and that he would benefit from a continuous positive airway pressure (CPAP) device. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. The Veteran contends that he began experiencing sleep apnea while in service. In his January 2015 Notice of Disagreement (NOD), he wrote, During my years of Army service, from October 1965 until August 4, 2001 (when I sustained the parachute accident which effectively ended my career), I slept only about four hours per night and was known to snore heavily… I was unaware of “sleep studies” or even a definition of sleep apnea during my service years. It was not until March 2014, that a roommate of mine on a mission trip to Guatemala commented on my excessive snoring and labored breathing. He advised me to consult a doctor, which I did upon my return to [the] U.S. Dr. [R.], Huntsville Sleep Center ordered sleep studies and confirmed that I do have serious sleep apnea. He prescribed a CPAP machine which I need to use daily. The Veteran’s wife also submitted a statement in January 2015, writing, [The Veteran] and I have been married since August 1998. He was AGR with 20th Special Forces Group at the time. My husband has always snored; however, this changed dramatically after his parachute accident in August 2001. Since that time he started increasing volume and frequency of snoring to the point that his quality of night rest was constantly interrupted. In addition, he also developed a state where his whole body twitched and shaked regularly when sleeping. It has been a difficult road for him and it affects everyone in the household when you see the world of your husband fragmentized in such a way. After the doctor diagnosed [him] with this severe case of sleep apnea and prescribed the CPAP mask; [he] has been able to improve to a more peaceful night of rest. In a buddy statement dated March 2018, one of the Veteran’s fellow servicemen provided, This letter is to certify that [the Veteran] and I were both assigned to Company B, 1/20th Special Forces Group (Airborne) in the early 1980s. In fact, [he] rented a room in my home…in 1983-84. Our bedrooms were near one another and I remember hearing [his] loud snoring regularly. In another buddy statement dated March 2018, another fellow serviceman wrote: This letter is to certify that [the Veteran] and I were both assigned to Company 8, 1/20th Special Forces Group (Airborne) in 1984. In the Spring of 1984, our Operational Detachment Alpha (ODA) 2009, deployed to England and Germany for nearly one month with Operation Flintlock. [The Veteran], then a Captain, operated with our team in the region of the Black Forest. We were both part of a six-man team with several operational tasks. During that time we bivouacked together every night in the German forests. I distinctly remember hearing [his] loud snoring regularly. The Board finds that these reports are competent and credible. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection for sleep apnea: evidence of an in-service disease or injury. Finally, with respect to the third requirement, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the Board finds sufficient credible evidence which establishes this nexus. In the September 2019 VA examiner’s opinion, the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner provided that, There is no medical evidence that the Veteran’s sleep apnea was incurred in or caused by military service. The STRs, available medical records, Veteran’s statement, wife statement and buddy statements are reviewed. Although snoring is common with people that have sleep apnea, it is not necessarily indicative of sleep apnea. Sleep apnea is diagnosed by a sleep study. Obstructive sleep apnea is characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. The most likely etiology of the Veteran’s OSA is aging as well as risk factors of male gender. The examiner supported his opinion by citing the risk factors for OSA, focusing on age and obesity and citing to relevant medical literature. In a lay statement dated September 2020, the Veteran’s wife provided, I observed right after his [military parachute] accident of 2001, how difficult it was for him to have a full rest night sleep. He was not only snoring very loud, but had constant nightmares, insomnia, episodes of no breathing, frequently gasping, and choking and his whole body twitching…[He] has been going through the same sleep deprivation ever since his accident, feeling fatigue, tired and sleepy during the day. It was not until Dr. [L.B.] noticed all these symptoms mentioned above on a trip in 2014 and advised [him] to be checked out for sleep apnea as soon as possible. Dr. [B.] pointed out this was serious and it needed to be addressed immediately. [We] took action and went to Dr. [J. R.] He diagnosed [him] with obstructed sleep apnea and has been treating [him] with CPAP therapy ever since. The Veteran’s wife is competent and credible to report witnessing not only loud snoring but also frequent gasping, choking, and episodes of not breathing during active duty service. Her lay evidence is probative to establish these symptoms of sleep apnea in service, and to show that the symptoms have remained consistent to the present. Lay evidence is competent and sufficient to establish etiology when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the lay evidence of the Veteran’s wife describes symptoms during service that were later diagnosed as sleep apnea by Dr. R., a medical professional. This is probative nexus evidence in favor of the Veteran’s claim. The Board finds the opinion of the September 2019 VA examiner was based on an incomplete factual premise because, at the time of the examination, the examiner did not have the opportunity to review the wife’s second lay statement which was provided in September 2020. While the VA examiner’s negative nexus opinion focused mainly on the symptom of snoring with relation to sleep apnea, the wife’s September 2020 statement discussed much more than the Veteran’s snoring; it also established symptoms such as episodes of no breathing, frequently gasping, and choking. Thus, the Board finds that the opinion of the September 2019 VA examiner, through no fault of his own, was based on an incomplete factual premise. A medical opinion based on an inaccurate or incomplete factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the opinion of the September 2019 VA examiner is not probative. The Board finds there is no probative medical evidence of record which contradicts the Veteran’s wife’s statement in September 2020. The probative evidence of record weighs in favor of finding that the Veteran’s current sleep apnea had its onset during active duty service. Service connection for sleep apnea is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.