Citation Nr: 21063951 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-48 218 DATE: October 18, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's current sleep apnea is causally related to an injury, event, or disease in service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.97. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1983 to October 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board issued a March 2019 decision remanding the case for a VA examination. The RO issued an April 2020 supplemental statement of case (SSOC) and the case was returned to the Board. 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; 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 also known as a "nexus" between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran asserts that service connection for sleep apnea is warranted because his condition began during his active service, or in the alternative, secondary to his service-connected hypertension. See July 2017 Notice of Disagreement (NOD), September 2017 Form 9 Appeal. The Board finds that the Veteran has a current disability of sleep apnea that was caused by his active service. Accordingly, the Board grants the appeal. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The Veteran was diagnosed with severe obstructive sleep apnea in April of 2016. See July 2017 Private Medical Treatment Records. Thus, the question becomes whether the current disability is related to service. The Veteran's service treatment records (STRs) are silent for complaints, treatment for, or diagnosis of sleep apnea. See May 2011, August 2016, and September 2018 STRs. In addition, the Veteran denied trouble sleeping or shortness of breath in his March 1981, August 1995, June 2000, and June 2006 reports of medical history. Id. The Veteran also denied any sleeping problems in his June 2006 post deployment health assessment. See August 2016 STRs. During a February 2016 medical appointment, the Veteran requested a sleep study stating that he hadn't been sleeping well for a while, would only get 5-6 hours of sleep per night, did not feel rested when he woke up and was tired throughout the day, and that he would wake his spouse with his snoring. See July 2016 Private Medical Treatment Records. After completing an April 2016 sleep study, the Veteran was diagnosed with severe supine and minimal lateral obstructive sleep apnea. See July 2017 Private Medical Treatment Records. The Veteran stated that while he wasn't diagnosed with OSA while in service he believes he still had it. See July 2017 NOD and September 2017 Form 9 Appeal. He stated he had all of the symptoms of OSA including broken sleep, constant snoring, fatigue, and tiredness throughout the day. He stated that he was unaware of the condition which is why he did not seek medical treatment at the time, and that he was never asked about sleeping problems during medical appointments, but that he has had the symptoms for more than 10 years. Id. In an August 2017 buddy statement, C.F. stated that they observed the Veteran at night and that he rarely sleeps throughout the night without waking several times and complains of fatigue and tiredness during the day. See August 2017 Correspondence. In addition, the Veteran snores loudly and constantly throughout the night and at times the snoring is so bad that C.F. will need to get up and sleep in a different room. They stated these symptoms have been consistent for years dating back to the Veteran's active-duty days. Id. During an October 2019 VA examination, the Veteran reported excessive snoring, fatigue, restless sleep and that he would often wake up at night. He reported the onset of the symptoms in 2006. The examiner confirmed his diagnosis of obstructive sleep apnea. The examiner opined that the Veteran's sleep apnea was less likely than not related to, proximately due to, or incurred during Veteran's active military service. In support of their opinion, they stated the Veteran's STRs were silent for complaints of trouble sleeping or snoring during service. Id. Although the October 2019 VA examiner opined the Veteran's sleep apnea was not due to service, the examiner based their opinion on the lack of symptoms, treatment, or diagnosis of the condition in the Veteran's STRs. The mere absence of treatment records should not be the sole basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The examiner also disregarded the statements from both C.F. and the Veteran regarding his troubled sleep, fatigue, and loud snoring without explanation. The Board finds the October 2019 examiner failed to provide adequate rationale in support of their opinion and it is therefore entitled to less probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical report cannot merely draw conclusions from data; it should include "a reasoned medical explanation connecting the two"), see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran provided multiple statements that his symptoms of OSA including broken sleep, snoring, fatigue, and tiredness during the day started during service and have continued since that time. See July 2017 Notice Of Disagreement and September 2017 Form 9 Substantive Appeal. The Veteran is competent to report his readily observable symptoms. See 38 C.F.R. § 3.159(a)(2), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are corroborated by a February 2016 medical note where he requested a sleep study stating that he hadn't been sleeping well for a while, would only get 5-6 hours of sleep per night, was tired throughout the day, and that he would wake his spouse with his snoring. See July 2016 Private Medical Treatment Records. Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy and therefore the Board finds his statements to be credible. See White v. Illinois, 502 U.S. 346 (1992). In addition, the Veteran's statements are corroborated by the statement of C.F. that reported the Veteran's symptoms started during his active service. The Board finds this lay evidence is entitled to more probative weight. Upon review of the record, the Board finds the evidence is at least in equipoise that the Veteran's current sleep apnea was caused by his active service. Accordingly, (Continued on the next page) after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.