Citation Nr: 21002832 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 14-30 699 DATE: January 15, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran’s obstructive sleep apnea as likely as not began during his time in service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for obstructive sleep apnea. 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 from October 1971 to August 1991.  In September 2018, the Board remanded this claim (also others then on appeal) back to the Agency of Original Jurisdiction (AOJ) for further development and consideration – including to have the Veteran undergo an examination for a medical opinion concerning the origins of his obstructive sleep apnea, both in terms of whether it is due to exposure to environmental hazards in Southwest Asia during his Persian Gulf War (PGW) service or started during his service, even if not initially diagnosed until later after conclusion of his service. This needed examination and opinion concerning this were provided in September 2019. However, partly based on the results, the AOJ issued a Supplemental Statement of the Case (SSOC) in October 2020 continuing to deny this claim and, therefore, recertified it to the Board in December 2020. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran contends that his OSA is attributable to his service or, at the very least, started during his time in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’ – the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may be service connected if the evidence, including that pertinent to service, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). If there is an approximate balance of evidence for versus against the claim, meaning the evidence is in relative equipoise, then this reasonable doubt is resolved in the Veteran’s favor and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.  To deny the claim, the preponderance of the evidence must be against it. Here, after considering the probative (competent and credible) evidence of record that is relevant to this claim, and resolving all reasonable doubt in the Veteran’s favor concerning the origins and time of onset of his OSA, the Board finds that he is entitled to service connection for this condition. The first point worth noting is that there is no disputing the Veteran has this claimed condition; he received a diagnosis of OSA following a sleep study in November 2002. His symptoms precipitating that study and resultant diagnosis included excessive daytime tiredness, difficulty sleeping, and loud snoring, indeed, to the point that he was sleeping in a recliner at home (so positioned upright) rather than in a bed lying flat.   Resolution of this appeal therefore turns, instead, on the equally important question of whether there also is the required attribution of his OSA to his service – either by showing it is the result of an injury, a disease, or an event during his service (and especially the exposure to the environmental hazards he says occurred during his tour in Southwest Asia) or in any event started during his service, meaning incepted while he was in service. See, e.g., Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). In support of his claim and this posited correlation (“nexus”), the Veteran submitted lay statements – including a March 2012 statement from his spouse, an April 2012 statement from his daughter, a personal statement in February 2012, his hearing testimony in February 2015, a November 2020 statement from his son, and another personal statement in November 2020. While not necessarily identical in wording, all these statements are internally consistent in substance in terms of describing daytime tiredness affecting multiple jobs, difficulty sleeping, loud snoring affecting his home life, and, crucially, initial onset of these symptoms shortly after he returned home from his PGW deployment in 1991. Thus, all of these statements tend to show his symptoms and this consequent impairment onset during his time in service. Moreover, the statements are consistent with the provider notes from 2002, as well as later provider notes from June 2007 and August 2009 regarding the Veteran’s symptoms, lifestyle, and inability to be treated by a continuous positive airway pressure (CPAP) machine because of his now service-connected other specific phobia (which he initially had claimed in the mental health context as claustrophobia). The Veteran and the other family members mentioned are competent to comment on factual matters concerning which they have first-hand knowledge, such as noticing him snoring loudly during his sleep, apparent cessation of breathing (i.e., apnea) while sleeping, consequent daytime fatigue, and when all of that started occurring and how long it has persisted. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Moreover, since their competent lay testimony and statements concerning this also are credible, they are ultimately probative. The Board accordingly finds probative evidence tending to support the notion of these symptoms and impairment starting during his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also realizes that the VA examiners who were asked on remand to comment on this posited correlation between the Veteran’s OSA and his service both concluded unfavorably, one in September and the other in October 2019. But the Board ultimately finds their opinions insufficient reason to deny the claim, partly because each examiner mistakenly believed the Veteran did not first receive a diagnosis of OSA until 2009, despite earlier documented diagnoses of this condition in November 2002 and June 2007 based on the results of a sleep study. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based). Further, each examiner seemed to ignore the competent lay statements of record dating this disorder back to when the Veteran was in service simply because there was a period of time (i.e., latency) between the end of his service and him initially undergoing the sleep study that precipitated his OSA diagnosis, also the fact that he did not seek treatment for OSA at any time while in service. While this is true, the lay statements submitted by him and his family allege the same litany of symptoms – snoring, problems sleeping and/or breathing while sleeping, and daytime exhaustion, etc., both during and continuing since service – as earlier (i.e., prodromal) or characteristic symptoms of OSA even predating the actual initial diagnosis of this condition subsequently in November 2002. And, to reiterate, once he underwent the sleep study, it was confirmed he had OSA. In various contexts, precedent decisions of the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) have held that the date of medical evidence or when it was received is not necessarily indicative or dispositive of when the Veteran began experiencing the symptoms of the disability indicated (diagnosed) in the medical record. See, e.g., McGrath v. Gober, 14 Vet. App. 28 (2000).   Accordingly, here, these VA medical opinions are afforded little probative weight because they are predicated on an inaccurate factual premise and do not account for the attestations regarding the symptoms the Veteran experienced during his service that were later determined to be consistent with his eventual OSA diagnosis. In the absence of an adequate medical opinion, the Board is left with a record showing the Veteran has OSA (confirmed by a sleep study) and lay affirmations that he began experiencing associated symptoms while in service, so well before the initial diagnosis. Accordingly, the Board will give him the benefit of the doubt and resolve the matter in his favor in terms of dating his OSA back to his service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. Therefore, service connection for OSA is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.