Citation Nr: 21000598 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-61 776 DATE: January 5, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT Resolving any reasonable doubt in favor of the Veteran, his sleep apnea is more likely than not related to his active duty service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to July 1993. The Veteran and his wife testified before the undersigned Veterans’ Law Judge in May 2017 and the Veteran testified before the undersigned in June 2020. Copies of both transcripts are associated with the record. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Sleep Apnea The Veteran contends his sleep apnea is related to his active duty service. His service treatment records (STRs) do not show treatment for or diagnosis of sleep apnea while in-service. The Veteran was officially diagnosed with sleep apnea in August 2016. However, his wife testified that the Veteran began having sleep apnea symptoms, specifically snoring, while still in-service and immediately after his active duty service. See May 2017 hearing transcript. The Veteran also testified that he had sleep apnea symptoms while in-service and immediately thereafter. See May 2017 and June 2020 hearing transcripts. In September 2020, the Veteran submitted a private medical report from a physician. The physician provided his curriculum vitae and noted he reviewed the Veteran’s medical records. The physician stated that based on his review of the record, and in consideration of the testimony of the Veteran and his wife regarding his symptoms in-service and within a year of service, that the Veteran’s sleep apnea was related to his active duty service. Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. The Veteran and his wife have provided credible testimony regarding the observable symptoms of the Veteran’s sleep apnea while in-service and within a year of service. There is no evidence of record which contradicts this testimony. The Veteran has also provided a probative medical opinion which links his sleep apnea to his active duty service. There is no evidence which contradicts this medical opinion regarding the Veteran’s diagnosed sleep apnea. Though there is an August 2016 VA opinion regarding the Veteran’s sleep apnea and his service in Southwest Asia, that opinion did not address a direct link between the Veteran’s sleep apnea and his service. The Board notes that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As such, the preponderance of the evidence supports a finding that the Veteran’s sleep apnea was related to his active duty service. Thus, service connection for sleep apnea is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.