Citation Nr: 21000700 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-48 507 DATE: January 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING The Veteran’s sleep apnea was incurred in, or caused by, his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1974 to November 1977. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The record was held open for 90 days thereafter for the Veteran to submit additional evidence. Additional evidence was received, and the Veteran waived RO consideration of the additional evidence and any further evidence added to his file. 1. Entitlement to service connection for OSA is remanded. The Veteran contends that his symptoms of sleep apnea had their initial onset during his military service and have continued to the present day. See June 2019 Hearing Transcript. He further contends that the August 2017 VA examiner did not fully consider the lay statement submitted by a friend of the Veteran. Id. Service connection may be granted for a disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson reports a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The medical evidence of record establishes that the Veteran has been diagnosed with OSA. The Veteran has submitted competent lay statements and provided testimony addressing the onset and continuation of his symptoms. At the Travel Board Hearing, the Veteran testified that he had no problems with snoring prior to entering service, but he developed a reputation for snoring in service, and others did not want to sleep in the same barracks as him. He further testified that, shortly after he was married, his wife woke him in the middle of the night to tell him to start breathing again. The Veteran is competent to identify the onset and duration of observable symptoms, such as apneic incidents and snoring, and is competent to report what he has been told by witnesses. The Veteran submitted lay statements by his wife and a fellow servicemember. His wife reported that, from the time they were married, she needed to prompt him to breathe while he was sleeping. She reported that it wasn’t until 2001 that a friend suggested that the Veteran speak to a doctor about his apnea. The Veteran’s fellow servicemember reported these he and others would attempt to sleep far from the Veteran because he snored loudly. The Veteran’s wife and fellow servicemember are competent to identify the onset and duration of observable symptoms, such apneic incidents and snoring. The lay statements submitted by the Veteran and his associates are consistent and there is no probative evidence of record that conflicts with the information provided. Therefore, the lay statements are credible. The August 2017 VA clinician noted the Veteran’s February 2008 sleep study diagnosing OSA, and the Veteran’s wife’s report that the Veteran was diagnosed with OSA after an April 2002 sleep study. The clinician opined that it is less likely than not that the Veteran’s OSA is incurred in or caused by service. She reasoned that the Veteran’s service treatment records are silent for OSA or a sleep disorder condition; the diagnosis of OSA was not evident until the 2000s; and a 2008 sleep study showed mild OSA. The clinician’s rationale was based primarily on lack of contemporaneous treatment records, without explaining whether it is likely that the Veteran would have sought treatment for snoring or breathing stoppages during sleep. While the examiner addressed lay statements regarding snoring since service, she did not address lay statements regarding the Veteran’s breathing irregularities since 1976. As such, the Board finds the August 2017 medical opinion to be of low probative value. August 2019 VA sleep clinic treatment records show a diagnosis of mild OSA and state that the Veteran has had symptoms since 1976: snoring, gasping with witnessed apnea by his wife, frequent awakenings, and weight around 250 lbs. The treatment records also state that although symptoms were present, no evaluation or treatment was done until 2002, when the Veteran has sleep testing at Kaiser. The treating physician opined that there is a very strong likelihood (greater than 50 percent) that OSA was present starting in 1976. Reading the treatment record in the light most favorable to the Veteran, the physician explained his rationale and considered the Veteran’s lay statements. As such, the Board affords the opinion high probative value. The Veteran has current diagnoses of OSA, the symptoms of which the Veteran and his associates have reported he has experienced since service. Because the August 2019 physician considered the Veteran’s lay statements, the Board affords high probative value to the opinion. The Board affords less probative value to the August 2017 VA examination report that did not consider all of the competent lay   statements. As such, the evidence is at least in equipoise as to whether the Veteran’s OSA began in or are due to service. Resolving any doubt in favor of the Veteran, the Board finds that service connection for OSA is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.