Citation Nr: 21066342 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-31 495 DATE: October 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his obstructive sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. § 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.302, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from October 2001 to October 2006 and in the United State Army from February 2007 to February 2013. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In March 2021, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the hearing is associated with the electronic claims file. Entitlement to service connection for obstructive sleep apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). 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 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis As an initial matter, the Board notes that the Veteran was diagnosed with obstructive sleep apnea in September 2015. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for in-service treatment or diagnosis of obstructive sleep apnea. However, the absence of documented treatment in service is not considered fatal to a service connection claim. A veteran or other lay person is 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). In this regard, the Board notes that the Veteran's service treatment records indicate that while he was not diagnosed or treated for sleep apnea in service, he did experience symptoms of sleep apnea. Additionally, the Veteran submitted a buddy statement documenting the symptoms experienced by the Veteran. The Veteran's service treatment records indicate instances of sleep impairment, including waking during the night and respiratory difficulty, beginning in July 2009. From July 2009 through the Veteran's separation from service in February 2013, the Veteran sought treatment for symptoms including difficulty "breathing through his nose," awakening throughout the night, snoring, and sleep disturbances secondary to nasal problems. Additionally, in March 2013, a month after separation, the Veteran sought treatment for "snoring and nighttime choking." At this time, it was documented that the Veteran had signs and symptoms of obstructive sleep apnea. In December 2017, a buddy statement was submitted in support of the symptoms experienced by the Veteran in service. The statement documented symptoms witnessed, such as "snoring and gasping for air," in addition to waking multiple times throughout the night. In addition to the Veteran's buddy's statement, the Veteran has consistently noted the approximate date of onset of his symptoms, and the history of the sleep apnea symptoms he has experienced. During the March 2021 hearing, the Veteran reiterated that he began to experience his symptoms during service in 2009 and has experienced the continuation of those symptoms since service. The Veteran's medical treatment records indicate that he has sought treatment for his symptoms, and eventual diagnosis of sleep apnea, consistently since service. As stated above, the Board notes that symptoms of sleep apnea are capable of lay observation and as the Veteran has been consistent with his statements, which are corroborated by his buddy's competent and credible statement, the Board finds them to be credible and of significant probative value. The Board notes that the Veteran has been afforded a VA medical examination for his obstructive sleep apnea in February 2017, however, no medical nexus opinion was provided regarding the etiology of the Veteran's obstructive sleep apnea. Therefore, there is no probative evidence against such a relationship between the onset of symptoms in service, and the Veteran's eventual diagnosis of obstructive sleep apnea. The Board also finds that the competent evidence of record is at least in equipoise as to whether the symptoms diagnosed as sleep apnea in 2015 are the same symptoms the Veteran originally experienced in active service, and the Veteran and his buddy statements and other evidence of record constitute credible and persuasive circumstantial evidence that the same symptoms described during and following service are the same that resulted in the diagnosis in 2015. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for sleep apnea is warranted on a direct basis. 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 S. W. Morgan, 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.