Citation Nr: 21003204 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 12-25 049 DATE: January 19, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT With resolution of any reasonable doubt in his favor, the Veteran's OSA is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for OSA are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1987 to April 2001. Effective November 2012, the Veteran’s combined ratings for service-connected disorders is 100 percent. This matter was previously before the Board of Veterans’ Appeals (Board) in April 2019 when the issue was remanded for further development. Further development having been completed; the matter is once again before the Board. Service Connection Under the relevant laws and regulations, service connection will be granted for a disability that was caused or aggravated by a disease or injury in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) an in-service disease or injury; (2) a current disease or disability; and (3) a nexus between the in-service event and the current disease or disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Further, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Service connection for OSA is granted. The Veteran's medical records indicate that has been diagnosed with OSA since 2012. In an August 2020 statement, a fellow servicemember reported that she was stationed with the Veteran from 1993 to 1995. She stated that she worked alongside the Veteran during 12-hour shifts. She stated that she witnessed that the Veteran would arrive for work tired, that he had difficulty focusing, and that he would fall asleep easily while performing his daily tasks. She also stated that the Veteran would take short naps during his shifts, during which he would frequently snore loudly and gasp for air. She stated that she also witnessed the Veteran snoring loudly and gasping for air during the night when they slept over at each other’s home. In an August 2020 statement, the Veteran’s spouse reported that she served with the Veteran. She stated that she remembers that the Veteran would snore loudly and stop breathing during the night when he was in-service. She reported that the Veteran would arrive to work tired and that he would fall asleep while performing his duties. She stated that he would take short naps during his shift. She reported that the Veteran has continued to snore loudly and frequently and stop breathing throughout the night since his service. In a September 1999 report of medical history, the Veteran checked “yes” to the question of whether he had then or ever had frequent trouble sleeping. However, in the physician’s summary, it was noted that the endorsed frequent trouble sleeping was related to frequent insomnia, which was related to work schedule and a right knee condition. The February 2001 medical separation examination is absent any complaints or symptoms suggestive of OSA. Nonetheless, the evidence is in equipoise on the question of whether the Veteran's OSA symptoms had their onset in service, have recurred since service, and have been attributed to the current diagnosis of OSA. In a VA examination in February 2020, the examiner noted that the Veteran’s sleep condition had onset in 2000, which was during the Veteran’s active service. The lay statements of the Veteran, the Veteran's fellow servicemember, and spouse are highly probative. As laypersons, they are competent to report such observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, nothing in the record directly contradicts these lay statements, and the credibility of the statements are not in doubt. Additionally, the fact that the official diagnosis of sleep apnea was not made until 2012 does not, in itself, preclude a finding of service connection, as probative evidence of record reasonably establishes that the Veteran's OSA symptoms began in service, have recurred since service, and have been attributed to his current diagnosis of OSA. See 38 C.F.R. § 3.303(d). Resolving reasonable doubt in the Veteran's favor, service connection for OSA is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(d). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.