Citation Nr: 21004849 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-12 948 DATE: January 28, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s sleep apnea had onset in service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for service connection for 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 honorably on active duty in the United States Army from March 2007 to August 2007, and again from January 2011 to July 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix Arizona. The Board remanded the case in June 2018, and again in May 2020, for further development. Entitlement to service connection for sleep apnea is granted. The Veteran contends that, while in service, he suffered from sleep related problems, which he believed represented symptoms of sleep apnea, and that he attempted to seek treatment for these problems, but was discouraged from doing so by superiors due to the proximity of his pending discharge. See October 2014 Notice of Disagreement, VA Form 21-0958. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.§ 1110; 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 service. 38 C.F.R. § 3.303(d). As noted above, the Veteran was discharged in July 2012. He underwent a sleep study in July 2014 and was diagnosed with moderate sleep apnea. The Veteran reported sleeping problems during service, and has submitted several buddy statements that attest to observing these problems during service, and support the Veteran’s assertion that he was recommended for, but discouraged from obtaining an in-service sleep study before his discharge. The medical opinion evidence of record does not adequately address the key question at issue—namely, whether it is at least as likely as not the Veteran’s sleep apnea had onset during service. As explained in the Board’s prior remand, a definitive in-service diagnosis of sleep apnea during service is not required to award service connection. The most recent medical opinion obtained in response to the Board’s prior remand, which was against a finding that sleep apnea had onset in service, does not adequately address the Veteran’s complaints of sleep issues since service, as indicated in service treatment records, buddy statements, and the Veteran’s own competent descriptions of symptoms. Moreover, in reaching his conclusion, it also appears the examiner relied heavily on an understanding that the Veteran had reported only a one-year history of sleeping difficulties to VA treatment providers at the time of his post-service diagnosis in 2014. Indeed, the September 2019 examiner identified a “critical note with respect to this rationale” from July 2014, in which the “[V]eteran reports a ‘one year history’ of sleep-related issues.” The examiner continued, “[t]his places it [sleep apnea] outside the time of proximity to service.” However, the July 2014 VA treatment note in question actually states: “HPI [history of present illness]: tired after sleeping [sp.] several yrs > 1 year snoring feels sleepy day time difficult to [sp.] drive long hours.” In other words, the July 2014 VA treatment note reflects that the Veteran had been experiencing sleep-related issues for greater than one year, and that these problems included snoring, daytime sleepiness, and difficulty driving long hours. The Veteran’s reported history has been consistent throughout the appeal period, and has support in the record. In an October 2014 lay statement, the Veteran’s fellow service member, E.C., reported that he had observed the Veteran sleeping both before and after his sleeping issues developed. E.C. stated that, in November 2011, when he and the Veteran were sent to a Joint Readiness Training Center, he observed the Veteran experiencing sleep issues. He encouraged the Veteran to seek treatment for sleep apnea because the Veteran’s symptoms resembled the symptoms of a battle buddy of his who had been diagnosed with sleep apnea. E.C. noted his familiarity with the Veteran’s emergency room visit, “with his chief complaint being that he needed sleep and was advised to follow up with the sleep clinic.” The Veteran’s fellow service member, J.L., submitted a lay statement as well, in October 2014, reporting that he too observed the Veteran both before and after his sleeping issues developed. J.L. noted that the Veteran was advised by a fellow battle buddy to seek treatment for sleep apnea, and had even attempted to seek treatment, but may have been thwarted from doing so due to his imminent separation. Also in October 2014, the Veteran’s fellow service-member, K.N., submitted a lay statement noting that the Veteran “was always tired.” K.N. stated that he had encouraged the Veteran to seek treatment for sleep issues, but that the Veteran was denied access to the sleep clinic due to his pending discharge. Given that (1) the Veteran reported sleep problems in service, (2) his fellow service members observed the changes in sleeping habits and attested to the Veteran having been discouraged from seeking a sleep study prior to discharge, (3) when he was ultimately tested just two years after discharge in July 2014, he was diagnosed with obstructive sleep apnea; (4) at the time of the diagnosis in 2014 he reported the symptoms he was experiencing had been present for several years; (5) and given the inadequacy of the negative medical opinion evidence of record, the Board finds that the evidence both for and against a conclusion that the Veteran’s sleep apnea had onset during service to be in relative equipoise. As such, the Board resolves all doubt in the Veteran’s favor and the benefit sought on appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.