Citation Nr: 21000409 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-17 188 DATE: January 5, 2021 ORDER The February 13, 2018 Board of Veterans’ Appeals (Board) decision is vacated as to the award of service connection for obstructive sleep apnea. Service connection for obstructive sleep apnea is granted on a direct basis. FINDINGS OF FACT 1. On February 13, 2018, the Board issued a decision that, in pertinent part, granted service connection for obstructive sleep apnea on the basis of aggravation by service-connected disabilities and did not address the Veteran’s contentions regarding entitlement to service connection on a direct basis, thereby denying the Veteran due process of law. 2. The Veteran’s currently diagnosed obstructive sleep apnea is etiologically related to service. CONCLUSIONS OF LAW 1. The February 13, 2018 Board decision that, in pertinent part, granted entitlement to service connection for obstructive sleep apnea on the basis of aggravation by service-connected disabilities, is vacated as to that issue. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2019). 2. The criteria for service connection for obstructive sleep apnea have been met on a direct basis. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from May 1984 to May 1988 and from December 1990 to June 1991. He had additional periods of service with the National Guard and Reserves, including active duty for training from September 1980 to February 1981. This matter comes before the Board on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 13, 2018 decision, the Board granted entitlement to service connection for obstructive sleep apnea on the basis of aggravation by service-connected disabilities. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Order to Vacate The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In a February 13, 2018 decision, the Board granted service connection for obstructive sleep apnea on the basis of aggravation by service-connected disabilities. However, the Board did not address whether the Veteran was entitled to service connection for obstructive sleep apnea on a direct basis, despite such theory of entitlement being raised by the record. The Board finds that, under the particular facts of this case, the Board’s failure to address this theory of entitlement in the February 13, 2018 decision constitutes a violation of the Veteran’s right to due process of law, as an award of service connection for obstructive sleep apnea on a direct basis would be more favorable to the Veteran. Therefore, the Board, on its own motion, vacates the February 13, 2018, decision as to the issues of entitlement to service connection for obstructive sleep apnea. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for obstructive sleep apnea. The Veteran contends that he has a current diagnosis of obstructive sleep apnea that manifested during service and is etiologically related to service. Initially, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea. See October 2016 VA Sleep Medicine diagnostic study report. Next, the Board finds that the Veteran’s symptoms of obstructive sleep apnea manifested during service. This is based on the lay statements from the Veteran’s spouse, and R.C., a fellow service member, who both stated that they witnessed the Veteran snoring and gasping for air during service. The Board finds these statements to be both competent and credible, as they are based on the individuals’ own observations and consistent with each other and the Veteran’s statements. Turning to the issue of etiology, the Board finds that the weight of the evidence supports a finding that the Veteran’s current obstructive sleep apnea is etiologically related to service. In a November 2016 statement, the Veteran’s treating physician, Dr. J.E., opined that the Veteran’s symptoms of sleep apnea more likely than not began while the Veteran was on active duty. In support of this opinion, Dr. J.E. noted that the Veteran had symptoms of sleep apnea during service, in addition to well-documented hypertension during service, and that it is well-established that obstructive sleep apnea is strongly related to hypertension. The Board finds this opinion to be highly probative, as it is based on a review of the record and the treating physician’s familiarity with the Veteran’s medical history, and includes an adequate rationale. The Board notes that this is the only competent nexus opinion of record. As explained above, the Veteran's current sleep apnea meets all three elements for service connection, as there is competent evidence of relevant in-service symptoms, a current diagnosis of sleep apnea, and competent nexus between the current diagnosis and in-service symptoms. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for obstructive sleep apnea have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea is granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.