Citation Nr: 21061796 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-48 094 DATE: October 5, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, he had symptoms of obstructive sleep apnea during service and since service separation. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from August to September 1972, and in the Navy from September 1980 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2019, the Veteran testified during a travel Board hearing at the RO before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In August 2019, the Board found deficiencies in a June 2013 VA medical opinion concerning the etiology of the Veteran's obstructive sleep apnea and remanded the claim to afford the Veteran a new VA examination and to obtain VA medical opinions addressing the likely etiology of his sleep apnea, to include as due to his service-connected depressive disorder. However, the VA examiner chose to forgo physical examination of the Veteran and to issue only the requested medical opinions, dated December 2019, which have been associated with the record. Due to deficiencies reflected in the December 2019 opinions and the examiner's decision not to provide the Veteran with an examination, the Board finds there has not been substantial compliance with its August 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Nevertheless, the Veteran is not prejudiced by these deficiencies as the Board grants the claim herein. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2020); Allen v. Brown, 8 Vet. App. 374 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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. Sleep Apnea The Veteran has a current diagnosis of obstructive sleep apnea (OSA) since at least 2011. See, e.g., VA Sleep Study Report dated October 26, 2011; VA primary care note dated October 22, 2012. The Veteran asserts that his OSA onset during his active duty service. See, e.g., Statement in Support of Claim received March 26, 2012. After a careful review of all the evidence, lay and medical, the Board finds that symptoms of the currently diagnosed OSA had their onset during active duty service. The Veteran's service treatment records reflect that several weeks following his enlistment in the Army, he endorsed frequent trouble sleeping, which was attributed at that time to nervousness. See Report of Medical History dated September 13, 1972 at pgs. 1-2. Thereafter, during his Navy service, he reported sleep difficulties in 1985 that were attributed to conflict with a fellow sailor. See Chronological Record of Medical Care entry dated March 13, 1985; Consultation Sheet dated March 13, 1985. However, the service treatment records do not reflect diagnosis or treatment of OSA. Nevertheless, post-service VA treatment records reflect that in 2011, the Veteran was diagnosed with OSA. See, e.g., VA Sleep Study Report dated October 26, 2011. As noted above, the record contains negative nexus opinions by VA examiners dated June 2013 and December 2019. For reasons set forth in the Board's August 2019 remand, the June 2013 opinion is inadequate and need not be further discussed here. Additionally, the December 2019 VA opinions are inadequate. First, the examiner indicated that the "precise" etiology of the Veteran's OSA could not be determined. However, service connection requires only a preponderance of evidence, i.e., that a claimed disorder is at least as likely as not related to service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute" etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Second, the examiner discussed each OSA symptom endorsed by the Veteran in isolation, concluding that sleep disturbances and then snoring, alone, are not etiologically determinative, rather than discussing the Veteran's OSA symptoms as a whole. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that, in general, a medical report cannot merely draw conclusions from data; rather, it should include "a reasoned medical explanation connecting the two"). Lastly, in considering whether the Veteran's OSA is secondary to the Veteran's service-connected depressive disorder, the examiner contemplated only causation; aggravation was not consider considered. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection under 38 C.F.R. § 3.310(b)). As such, the Board assigns the December 2019 VA opinion no probative value. While another medical opinion could be requested, the Board finds that the current evidence is sufficient to decide the claim. On appeal, the Veteran emphasized that he experienced sleeping problems such as sleep disturbances, snoring, and cessation of breathing during service, and that he continues to experience these symptoms since their onset during his active duty service. See Statement in Support of claim received March 26, 2012; Notice of Disagreement received March 26, 2014 at pg. 2. Indeed, during the April 2019 Board hearing, the Veteran described snoring, sleep disturbances, and nighttime breathing difficulties during service, emphasizing that these symptoms "are continuing things." See Board hearing transcript dated April 1, 2019 at pgs. 5-6. The Veteran is competent to report that he experienced sleep disturbances and snoring. Layno, supra. Furthermore, the Board finds the statements of the Veteran with respect to such symptoms both competent and credible. In fact, there is nothing in the record that contradicts his lay assertions. The Board additionally notes that proof of symptoms in service that are later diagnosed may be evidence of service "incurrence." See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), (d); Jandreau, 492 F.3d at 1377 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The finding that the Veteran has had OSA symptoms, particularly to include sleep impairment and nighttime breathing difficulties dating from active service, as well as the competent and credible statements of his snoring and sleep impairment that continues to this day, is supportive of the claim overall, because it tends to show that the same symptoms that began in service were the basis for the later diagnosed OSA. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent as to in-service and post-service symptoms). Accordingly, based on the competent and credible lay and medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his OSA had its onset during active service. See 38 C.F.R. §§ 3.102, 3.303(d). Given the Board's grant of service connection on a direct basis based on the Veteran's symptoms of OSA during service and since separation from active duty, all other theories of entitlement are rendered moot. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.