Citation Nr: 21061945 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-36 159 DATE: October 5, 2021 ORDER Entitlement to service connection for sleep apnea (also claimed as respiratory condition) is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, his sleep apnea (also claimed as respiratory condition) began in service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea (also claimed as respiratory condition) have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154 (a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1975 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board, in conjunction with other claims, in June 2019, when it was remanded for a VA examination. Most recently, in April 2021, it was remanded for an adequate addendum nexus opinion, and has now returned to the Board for further appellate review. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Sleep apnea does fall within this category. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sleep apnea (also claimed as respiratory condition) The Veteran and his representative have asserted that he is entitled to direct service connection for his sleep apnea disability because his shipmates complained of his constant loud snoring and observed respiratory difficulties while sleeping during his active duty service. See, June 2018 Form 9. Presumption of service connection is not applicable in this case, and as such service connection can only be granted based on direct service connection or on a secondary service connection. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the record reflects that the Veteran was diagnosed with obstructive sleep apnea (OSA) following a sleep study in November 2015, and such diagnosis was subsequently noted in respective February 2020 and April 2021 Sleep Apnea Disability Benefits Questionnaires. Accordingly, the first element for establishing service connection for the Veteran's claim has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records (STRs) are silent for in-service treatment or a diagnosis of obstructive sleep apnea. However, the absence of documented treatment in service is not considered fatal to a service connection claim. Specifically, the Veteran has competently and consistently reported that he started snoring and experienced sleeping difficulties during service, and that his shipmates complained to him about such. See, June 2016 Notice of Disagreement (NOD). He has also reported that notwithstanding his job duty as a radioman, he occupied the position of boatsman mate aboard the USS Alamo, the duties of which included heavy lead-based painting and sandblasting, and the use of an "air needle" to chip paint, which exposed him to particles that could account for respiratory issues he has also experienced. See, March 2021 Appellate Brief. The Board notes that in his initial VA examination in February 2020, although the VA examiner determined that a negative nexus exists due to lack of documentation in service of sleep apnea symptoms, this examiner also acknowledged that such exposure is consistent with respiratory disorders, such as sleep apnea, and the Veteran's report of loud snoring in-service. The examiner reported that he found the Veteran's 1998 report of such specifically credible, stating: Per veteran statement on 11/17/2017 veteran was exposed to fine sand particles and possibly paint since part of his job included sandblasting and painting ships. Per notes on 11/5/2015-Diagnostic PSG dated 09/25/2015- Moderate OSA with AHI 16.8 and min sat 87%. Was referred for CPAP machine fitting. Report by veteran dates 8/18/1998- confirms his work included sandblasting and painting of ships. There is documentation in the records that indicates the sandblasting and water blasting submarines while stationed aboard the USS Alamo was found to be credible and veteran competent. In his subjective history, he stated that he had started to snore loudly and his fellow soldiers requested for a change of quarters since he started snoring loudly- which is quite possibl[e]. Furthermore, in granting service connection for tinnitus, the RO also accepted the Veteran's assertions of his in-service noise exposure from sandblasting and water blasting submarines, which the Veteran has also reported as the same circumstances under which he was exposed to fine sand particles, which, as noted above, has been acknowledged by the February 2020 VA examiner to be medically consistent with his sleep apnea symptoms. The Board also notes that symptoms of sleep apnea are capable of lay observation, and the Veteran has been consistent with his statements that he experienced sleep apnea symptoms while in service, and his continuity of the same symptoms, post service, leading to his obstructive sleep apnea diagnosis. A veteran or other lay person is considered competent to report that which he perceives through his symptoms, which in this case, would be respiratory problems while sleeping, such as snoring. Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, given these specific facts, the Board finds these lay statements credible and of significant probative value in this case. Thus, the second element for establishing service connection has also been met. With regards to the final element of a nexus, relating the Veteran's current OSA disability to his active duty service, as previously referenced, the February 2020 examiner found a negative nexus due to lack of documentation of in-service sleep apnea symptoms or diagnosis, which the Board finds an inadequate basis to deny the Veteran's claim, as it is contrary to the Court's holding in Buchanan. A veteran can attest to factual matters of which he has or had first-hand knowledge, ... a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).; 38 C.F.R. §§ 3.303 (a), 3.307(b). Following the Board's remand for an addendum nexus opinion, such was provided by another VA examiner in April 2021. However, this examiner also found a similar basis for a negative nexus between the Veteran's current sleep apnea disability and his active duty service, stating: The veteran's current OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Review of the available records reveals no evidence of the presence of OSA during service. Reports of snoring are not directly pathognomonic for presence of OSA. The primary risk factor in this case for the development of OSA is obesity as evidenced by a BMI of 30 noted in 2013 prior to the PSG. The Board notes that this examiner discounted the Veteran's report of snoring during service and observed reported respiratory difficulties while he slept; rather, made a finding that the Veteran's obesity is the basis for his sleep apnea, without providing an adequate explanation with regards to why such was considered to be the primary factor. Consequently, the Board assigns a low probative value to this April 2020 VA examiner's negative nexus opinion. Accordingly, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's sleep apnea is directly related to his active duty service, and in weighing the evidence in the light most favorable to the Veteran, the Board finds that the final element for establishing service connection has also been met. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. In light of the Veteran's credible statements of his disruptive sleep pattern while in service and continuity of the same symptomology post service, which a VA examiner has acknowledged to be medically consistent with his service, the Board finds that the competent evidence of record is at least in equipoise as to whether the Veteran's diagnosed obstructive sleep apnea had its onset in service. Therefore, and in giving the Veteran the benefit of the doubt, the Board finds that service connection for sleep apnea is warranted in this case. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.