Citation Nr: 21002670 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-25 730 DATE: January 14, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Veteran's current obstructive sleep apnea was incurred during active duty service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are 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 United States Marine Corps from September 1980 to September 2000. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal, the Kuwait Liberation Medal, and the Combat Aircrew Wing insignia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded this matter for additional evidentiary development. 1. Entitlement to service connection for obstructive sleep apnea. The Veteran is seeking entitlement to service connection for obstructive sleep apnea. He contends that this disability began during his active service. Alternatively, he attributes this condition to his service-connected disabilities. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that tinnitus is not listed as a chronic disability under § 3.309(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran served on active duty from September 1980 to September 2000. A review of his service treatment records is silent as to any diagnosis of obstructive sleep apnea. He was treated multiple times in service for excessive weight. His retirement examination, conducted in April 2000, listed his weight as 205 pounds. Subsequently, a June 2000 inservice treatment report listed his weight as 227 pounds. He retired from the service in September 2000. An August 2004 VA treatment report noted the Veteran’s complaints of problems sleeping. At that time, he reported having sleeping problems the last few years, and that he was only sleeping 2 to 4 hours per night. The report concluded with an assessment of a sleep disorder, and referred the Veteran for a sleep study. A January 2005 VA treatment report listed his weight as 260 pounds. A March 2006 VA treatment report noted the Veteran’s complaints on insomnia and difficulty sleeping since 1990. He also reported symptoms of fatigue and snoring since that time. The report listed an assessment of sleep disorder, insomnia, and sleep apnea. Although the Veteran’s initial sleep study could not be located, a May 2006 VA treatment report noted that the results of this study showed findings of mild obstructive sleep apnea syndrome and referred the Veteran for CPAP treatment. An April 2014 VA examination noted that the Veteran had been diagnosed with obstructive sleep apnea in 2005. In support of his claim, the Veteran submitted statements indicating that he experienced chronic fatigue, snoring, and difficulty sleeping during service. He also reported that his former spouse complained about his snoring during his military service. Following a physical examination of the Veteran and a review of his claims file, a VA examiner in October 2020 opined that the Veteran’s obstructive sleep apnea was less likely than not related to his military service. In support of this opinion, the VA examiner noted that the Veteran had a weight gain of 64 pounds from his separation from service to the time of his sleep apnea diagnosis in 2005, and that this was the main cause of his development of obstructive sleep apnea. Specifically, the VA examiner cited the Veteran’s weight of 205 pounds on his April 2000 retirement physical, and his weight of 271 pounds on March 18, 2005. A closer review of the record, as was requested by the Board’s May 2018 remand, reveals that the Veteran weighed 271 pounds on March 18, 2006, not March 18, 2005. Thus, his weight at the time he was diagnosed was 260.8 pounds, as noted on a January 2005 VA treatment report. Moreover, the record indicates that the Veteran weighed 227 pounds in June 2000, while still in the service. Thus, the record indicates that the Veteran’s post service weight gain was roughly 33 pounds at the time of his diagnosis, which is significantly less that the post service weight gain of 64 pounds cited in support of the VA examiner’s opinion. The Board also notes that the VA examiner dismissed the Veteran’s contentions herein based solely on the lack of any complaints or treatment for sleep apnea during the Veteran’s service. The Veteran is, however, competent to report symptoms of fatigue, as well as his having received complaints concerning his snoring during service. Moreover, the record shows he sought treatment for sleep problems for the past few years in August 2004, which eventually lead to his diagnosis of obstructive sleep apnea. Given the Veteran’s contentions herein, the timing of his eventual diagnosis of obstructive sleep apnea, and the documented history of sleeping problems for the last few years before that, the Board concludes that the Veteran's current obstructive sleep apnea cannot be reasonably disassociated from his active duty service. In making this determination, the Board finds the statements regarding relevant symptoms in service provided by the Veteran to be competent and credible evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). The Board also finds the logic provided in support the VA examiner's October 2020 opinion to be based on erroneous facts. While there are many causes of fatigue, this Veteran was diagnosed with obstructive sleep apnea fairly soon after his separation from service. (Continued on next page) Resolving all doubt in favor of the Veteran, service connection for obstructive sleep apnea is warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.