Citation Nr: 21004802 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-18 673 DATE: January 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s current obstructive sleep apnea had its onset during his active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1979 to April 1987. This appeal before the Board of Veterans’ Appeals (Board) arose from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Board remanded the claims on appeal to the Agency of Original Jurisdiction for further evidentiary development in February 2018 and March 2020. Service Connection for Obstructive Sleep Apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish 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). 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). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). In the current appeal, the Veteran contends that his diagnosed sleep apnea began during his period of active service. A December 2018 VA-contracted examination report confirmed a diagnosis of obstructive sleep apnea (OSA), which, according to VA clinical reports, had been present since at least 2003. Thus, the current disability prong of this service connection claim has been met. While the Veteran’s service treatment records (STRs) do not specifically note a diagnosis of sleep apnea during service, a December 1981 clinical report indicates that the Veteran had trouble sleeping over the previous month. The assessment at that time was insomnia. In his May 2014 VA Form 9, the Veteran reported that his sleep apnea symptoms began while he was stationed at Andrew Air For Base (AFB) in Maryland. He maintained that he noticed a physical change, and began feeling tired. He reported feeling restless, and feeling as if he was waking up out of breath. He noted that, while he went to the doctor many times, he would end up being diagnosed with different conditions, and that he was told that he simply needed to adjust to the climate. He maintained that he began to stop breathing during his sleep at night, and that his wife would shake him to wake him up. In July 2019, the Veteran’s wife, son, and a friend of the Veteran, R.T., provided statements in support of his claim. His wife attested to the fact that his sleep patterns started to change while he was stationed at Andrews AFB. She noted that he would become very restless, and complained of being tired all the time. She reported that she then began to notice that he would stop breathing at night for five to 10 seconds at a time, and at times he would wake up gasping and coughing, as if he had been under water. R. T. reported statement that he stayed with the Veteran in 1986, while he was stationed at Andrews AFB, and that he witnessed the Veteran wake up gasping for air when sleeping on the couch. The Veteran’s son maintained that he had witnessed the Veteran stop breathing while he was asleep since the time that he was a child. The Board finds the Veteran, his wife, son, and R. T. are competent to report their observations, and the Board finds no reason to discount the credibility of their reports based on the evidence of record. The Veteran’s private physician, Dr. E. N., additionally provided an April 2018 letter in support of his claim. Dr. N. maintained, after reviewing the Veteran’s records, including his STRs, that he believed that signs were missed and that the Veteran was misdiagnosed with respect to his sleep apnea condition. He noted that he had the Veteran tested and found him to have sleep apnea with hypoxemia. VA has obtained multiple opinions with respect to the etiology of the Veteran’s sleep apnea; however, the Board finds these opinions to be inadequate. In a December 2018 VA-contracted examination report, the examiner provided the opinion that the Veteran’s sleep apnea was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. In providing the opinion, the examiner noted that there was no documentation of a sleep study that diagnosed OSA during service and that, therefore, it was less likely than not that the Veteran developed OSA during service. In providing this opinion, the examiner did not address the evidence of record indicating that the Veteran experienced symptoms indicative of sleep apnea during service. Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Additionally, in a March 2020 VA-contracted opinion, the physician opined that there was no evidence citing the Veteran’s service-connected disabilities as causes of his OSA, as there was no plausible pathophysiologic mechanism discussed in the medical literature and known medical principles that would explain a causal relationship between the service-connected disabilities and sleep apnea. The physician, however, did not discuss whether there was an etiological relationship between the Veteran’s OSA and his active service. Given the competent and credible lay evidence, which described symptoms consistent with those of sleep apnea during the Veteran’s service, the private physician’s statement indicating that the Veteran’s STRs indicated possible misdiagnoses, instead of sleep apnea, during service, and the lack of a probative medical opinion contrary to this evidence, the Board finds that the competent, credible and probative evidence of record indicates that the Veteran has been experiencing symptoms of sleep apnea since the time of his active service. Accordingly, in view of the totality of the evidence, with resolution of reasonable doubt on this appeal in the Veteran’s favor, the Board concludes that the criteria for service connection for obstructive sleep apnea have been met. Thus, entitlement to service connection for obstructive sleep apnea is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.