Citation Nr: 21062620 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-48 902 DATE: October 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran's OSA was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2006 to February 2014. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2015 rating decision issued by the Department of Veterans Affairs (VA). See April 2015 Notice of Disagreement (NOD); June 2016 Statement of the Case (SOC); August 2016 Substantive Appeal (VA Form 9). In November 2018, the Board remanded the claim for further development. November 2018 Board Decision. In May 2021, the Board remanded the claim again for further development. May 2021 Board Decision. The agency of original jurisdiction (AOJ) developed the evidence and continued the denial of the Veteran's claim. See July 2021 Supplemental Statement of the Case (SSOC). The claim is now back before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for OSA. The Veteran asserts entitlement to service connection for OSA based on having sleep disturbances since 2011. April 2015 NOD. The Veteran initially contended that his sleep problems were due to his shifting schedule and drastic time zone changes during service, but he later reported snoring and gasping for air while he slept as well. April 2015 NOD; July 2020 Correspondence. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is 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. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The evidence shows that OSA is a current disability. An October 2017 sleep study found the Veteran to have OSA associated with mild AHI and oxygen desaturation. October 2017 Private treatment evidence. The evidence also supports that the Veteran had sleep issues during service, which includes daytime fatigue, snoring, and gasping for air when he slept. Service treatment records show that the Veteran complained of having inadequate sleep 15 out of 30 days and that he requested an appointment to assess him for sleep apnea. July 2011 Service treatment record; July 2014 Service treatment record. The Veteran's spouse, L J B, reports knowing the Veteran since 2010 and witnessing his loud snoring and gasping for air while he slept. April 2019 Buddy statement. While his spouse is not competent to establish the cause of his sleep problems, her statements about observing his snoring and problems breathing while he slept are probative as they are symptoms she had the opportunity to observe and can report. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The lay and medical evidence strongly supports that the Veteran had problems sleeping during service. Finally, the Board finds that the evidence supports a medical nexus between the Veteran's current OSA diagnosis and his symptoms during service. As discussed above, the Veteran reported having problems with sleep and daytime fatigue during service. July 2011 Service treatment record; April 2019 Buddy statement. The Veteran reported having the same symptoms which led him to seek his 2017 sleep study and diagnosis for sleep apnea. See October 2017 Private treatment evidence. Moreover, the Veteran reports that his reported sleep issued since service have resolved with his OSA treatment over time. July 2020 Correspondence. The Veteran was afforded opinions from two VA examiners for his OSA, both who found his OSA as less likely than not incurred in or caused by service. See September 2019 VA Examination Medical Opinion; June 2021 VA Examination Medical Opinion. However, the Board finds the June 2021 VA examiner's opinion to not be probative because the examiner did not consider the lay statements about the Veteran's snoring and gasping for air while he slept during service. As for the September 2019 VA examiner's opinion, the examiner found the Veteran's daytime hypersomnolence as a symptom of OSA and that his breathing and snoring problems were resolved with OSA treatment. See September 2019 VA Examination for Sleep Apnea; September 2019 VA Examination Medical Opinion. This suggest that the examiner considered these as symptoms, which were reported as persistent since service, as due to the Veteran's OSA. The rationale for the September 2019 VA examiner's opinion is also not against finding that OSA was incurred in service, but that the Veteran may have a different sleep disorder because all of his symptoms did not improve with his current OSA treatment. See id. As noted above, the Veteran recently reported that his symptoms did improve over time. July 2020 Correspondence. The September 2019 VA examiner's opinion still raises a reasonable doubt as to whether the Veteran's OSA was incurred in or caused by service. However, in resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's OSA was incurred in service. Accordingly, entitlement to service connection for OSA is warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.