Citation Nr: 21002078 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-13 376 DATE: January 12, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, sleep apnea had its onset during the Veteran’s service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from July 1976 to February 1992. During this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via live video conference in March 2019. This matter was most recently before the Board in August 2019 when it was remanded for additional development. The Veteran testified at the March 2019 Board hearing that he suffers from sleep apnea that he believes began during service. See Hearing transcript. In support of his claim, the Veteran submitted statements from T.V. (who served with him) and his former spouse. They both lived with the Veteran during his military service and described witnessing him snore loudly, stop breathing, and gasp for air while sleeping. The Veteran statements describe how he was made fun of for his snoring and loud gasping in service. He also stated that beginning in service, he would wake up with a sore throat, dry mouth, headache and feeling tired. See Statements received in November 2012, March 2016, April 2019, and December 2020. Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. There is a current diagnosis of sleep apnea, first noted in 2011, as noted in VA treatment records. See 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366. The Veteran’s service treatment records (STRs) are silent for any findings, treatment, or diagnoses of sleep apnea. However, the Veteran was not afforded a sleep study in service, or for many years thereafter. STRs show that he was a daily smoker in service. The record establishes that, since his 2007 claim, the Veteran has credibly and consistently maintained that he has had symptoms of sleep apnea since service. His statements, as well as those from his fellow serviceman and his former spouse (who both lived with him during his military service) establish continuous and chronic symptoms of sleep apnea since service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Charles v. Principi, 16 Vet. App. 370 (2002). In addition, in November 2020, a private medical provider opined that the Veteran more likely than not suffered from obstructive sleep apnea related to his military service. In support of this assertion, she submitted a medical study which listed the risk factors for sleep apnea, which include being male and smoking (as the Veteran did in service). Consequently, the Board finds that the evidence supports the grant of service connection for sleep apnea. The Board acknowledges that a December 2019 VA examiner opined that the Veteran’s current sleep apnea was not related to his military service. The VA examiner’s conclusion is a medical conclusion that the Board cannot ignore or disregard (see Willis v. Derwinski, 1 Vet. App. 66 (1991)); however, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Veteran, his former spouse, and his fellow servicemember are all credible to testify as to the onset of the symptoms of his sleep disability and the 2020 private medical opinion supports the claim. Furthermore, it is noted that the rationale for the VA examiner’s negative opinion includes the statement that, “Trouble sleeping or snoring during service is not indicative of sleep apnea.” However, this opinion does not consider the Veteran’s former spouse and fellow servicemember also reporting that the Veteran would stop breathing and gasp for air while sleeping. (Continued on the next page)   For these reasons, the Board resolves all reasonable doubt in the Veteran’s favor, as is required under these circumstances, and finds that service connection for sleep apnea is warranted. See 38 C.F.R. § 3.102; Gilbert, supra. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.