Citation Nr: 21002381 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-36 572 DATE: January 13, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The currently diagnosed OSA was not noted on entry to the October 2003 period of service. 2. The Veteran’s OSA clearly and unmistakable preexisted the October 2003 period of service and the evidence is not clear and unmistakable that the OSA was not aggravated by that period of service. 3. Resolving all reasonable doubt in the Veteran’s favor, he had symptoms of sleep apnea during service and since service separation. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1992 to September 1998, October 2003 to March 2005, May 2007 to June 2007 and July 2007 to September 2008. The Veteran has additional periods of ACDUTRA and INACDUTRA in the Army National Guard and the Naval Reserves. The Veteran served as a field medic and received numerous awards and medals, to include the combat medical badge and a combat action badge, while serving in Iraq and Kuwait during the Persian Gulf War. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As a procedural matter, the RO denied the Veteran’s service connection claim for OSA in a March 2014 rating decision. After new evidence was received within one year of the March 2014 rating decision, the AOJ reconsidered and denied the claim in February and July 2015. The Veteran submitted a timely notice of disagreement in January 2016. The claim is now before the Board for further consideration. In February 2019, the Veteran testified before the undersigned Veterans Law Judge via a videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. 1. Entitlement to service connection for obstructive sleep apnea (OSA) Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service entrance and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 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. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. The Veteran in this case asserts that his currently diagnosed OSA is related to his period of active service from October 2003 to March 2005. See February 2019 Board hearing. Alternatively, the Veteran submitted a letter from his VA physician who opined that the Veteran’s OSA is etiologically related to his service-connected depression. The medical evidence shows that the Veteran was initially diagnosed with OSA in November 2000, prior to his October 2003 to March 2005 period of active service. See November 2000 VA treatment records. As noted above, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease that existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, OSA was not noted on the examination conducted upon entrance into the October 2003 period of service. Nonetheless, the evidence is clear and unmistakable that the Veteran was initially diagnosed with OSA in November 2000, several years prior to the October 2003 period of service. The Board next finds that the evidence is not clear and unmistakable that the OSA was not aggravated during the October 2003 period of service. Although the Veteran did not report symptoms of OSA and was not treated for OSA during the October 2003 period of service, he testified that others observed him exhibiting OSA symptoms, such as snoring, waking up to catch his breath, and apneas, during the October 2003 period of service while deployed to Iraq. See February 2019 Board hearing. He first reported still feeling tired after sleeping, in a March 2005 post-deployment health assessment. The Board concludes that the evidence is not clear and unmistakable that his symptoms were not aggravated during this period of service, and the presumption of soundness applies. Because the Veteran has been found to be presumed sound at entrance at the October 2003 period of service, the analysis turns to the question of entitlement to service connection turns on a direct service connection basis. The Veteran is currently diagnosed with OSA as shown on a July 2015 VA examination report. As indicated, he testified that he experienced symptoms of OSA during this period of service, to include difficulty sleeping, feeling tired after sleeping, and waking up to catch his breath. He also testified that others observed him snoring, having apneas during the October 2003 period of service while deployed. See February 2019 hearing transcript. Moreover, although his service treatment records are silent as to any OSA complaints, treatment or diagnosis, he first reported feeling tired after sleeping during service on the March 2005 post-deployment questionnaire. The Board notes further that the Veteran’s fellow service members are competent to describe witnessing the Veteran’s breathing difficulties during service, because they would have observed those symptoms first-hand with their own senses. In addition, the Veteran is competent to report snoring, feeling tired after sleeping, and waking up to catch his breath, during service and since discharge from service. See Layno, 6 Vet. App. At 465. The Board also finds the Veteran’s lay assertions credible. (Continued on the next page)   The Board additionally notes that proof of symptoms in service that are later diagnosed may be evidence of service “incurrence.” See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a), (d); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The finding that the Veteran has had sleep apnea symptoms, particularly to include feeling tired after sleeping and apneic episodes in service and immediately after service, is supportive of the claim overall, because it tends to show that the same symptoms that began in service were the basis for the later diagnosed OSA. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere’s disease). Accordingly, based on the competent and credible lay and medical evidence on record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his OSA is related to his 2003 period of active service. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, Associate 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.