Citation Nr: A21017192 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 200305-73562 DATE: October 25, 2021 ORDER 1. New and relevant evidence has been received to warrant readjudication of the claim of service connection for obstructive sleep apnea (OSA). 2. Entitlement to service connection for OSA is granted. FINDINGS OF FACT 1. An unappealed March 2009 rating decision denied service connection for OSA on the basis that such disability was not related to the Veteran's service. 2. Evidence received after the March 2009 rating decision shows that the Veteran's OSA may be related to his service, a fact relevant to the issue of service connection for OSA. 3. It is reasonably shown that the Veteran's OSA became manifest during his service. CONCLUSIONS OF LAW 1. New and relevant evidence has been received, and the claim of service connection for OSA warrants readjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d). 2. Service connection for OSA is warranted. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 2006 to October 2007 and had additional periods of active duty for training (ACDUTRA) from October 21, 2002 to May 13, 2003 and from October 1, 2009 to June 30, 2010. He also had additional Army National Guard service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision (that determined that new and relevant evidence warranting reconsideration of a claim of service connection for OSA had not been received). In his March 2020 VA-Form 10182 (notice of disagreement) the Veteran requested the Hearing with a Veterans Law Judge lane. In May 2021, a virtual Board hearing was held before the undersigned; a transcript is in the record. He submitted additional evidence in July 2021. Therefore, the Board may only consider the evidence of record at the time of, and considered in, the February 2020 rating decision, the May 2021 hearing testimony, and any evidence submitted or resubmitted within ninety days following the hearing. 1. New and relevant evidence has been received to warrant readjudication of the claim of service connection for OSA. Rating decisions of which an appeal was not perfected are final (based on the evidence of record at the time of the decision). However, VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (d); 84 Fed. Reg. 138, 169 (Jan. 18, 2019). New evidence is evidence that was not of record at the time of a prior final determination. "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1)). A March 2009 rating decision denied service connection for OSA, finding that while there were was a diagnosis of OSA, the disability was not shown to be related to service. That denial was unappealed and became final. Consequently, the critical question in this matter is whether subsequent to the March 2009 rating decision evidence has been received that tends to prove or disprove the claim of service connection for OSA, and is new and relevant to the claim. The Board finds that new and relevant evidence has been received. In July 2021, VA received a private medical opinion that found a link between the Veteran's military service and his OSA. Such evidence tends to prove an element necessary to substantiate a claim of service connection, a link between the current disability and service. Accordingly, the Board finds that new and relevant evidence has been received, and that readjudication of the claim of service connection for OSA is warranted. 2. Entitlement to service connection for OSA is granted. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's available service treatment records (STRs) do not show complaints of, treatments for, or a diagnosis of OSA. However, the Board acknowledges that VA requested his STRs from 2006-2007, and in a March 2009 memorandum, indicated that the Veteran's STRs from 2006-2007 were unavailable. When, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1Vet. App.365, 367 (1991). A December 2007 VA treatment record notes that the Veteran reported trouble sleeping and that he was concerned that he had sleep apnea. He related that he slept heavily, sometimes woke up coughing, and often woke up feeling unrested and experiencing a bad headache. A January 2008 VA treatment record notes that the Veteran reported that he returned from Iraq 2.5 months prior and wanted to establish primary care. He related that he had concerns and questions about possible sleep apnea and that he experienced daily fatigue (which had been ongoing for 2 years), a need for naps, feeling spacy after 12 hours of sleep, and some snoring. He reported that during deployment his roommates told him he coughed at night and that he experienced nasal congestion. A provider indicated that a sleep study would be requested, and fatigue, daytime sleepiness, snoring, and possible sleep apnea were diagnosed. A May 2008 VA treatment record notes that a provider indicated that a review of the sleep study showed that the data met the criteria for mild OSA. In an October 2019 statement, a friend who deployed with the Veteran from July 2006 to October 2007, related that he shared a 2-man room for the entire deployment with the Veteran and that during the deployment, the Veteran became a very heavy snorer. He indicated that the snoring was loud and raspy and that often it sounded like he was gasping for breath. He told the Veteran daily that he was "sawing wood" in his sleep. In an October 2019 statement, an ex-girlfriend (with whom the Veteran was in a relationship from 2005 to 2008) related that upon his return from deployment in 2007, he had a loud snoring problem and that she often had to shove him to get him to stop snoring. A January 2020 statement by a private provider indicates that he provided care for the Veteran during his service in the National Guard and during his deployment. The provider noted that they were exposed to environmental factors such as extreme burn pit smoke, blinding sandstorms, and extreme heat and that postservice treatment records show that the Veteran returned from deployment reporting coughing, daytime somnolence, chronic fatigues, and headaches. He opined that it was more likely than not that the conditions suffered (i.e., environmental exposures) during the Veteran's deployment to Iraq caused, contributed to, and aggravated his disability. In a January 2020 VA opinion, the examiner opined that the Veteran's OSA was not aggravated beyond its natural progression during his second (October 2009 to June 2010) period of service. He explained that the OSA was at least as likely as not worsened due to his massive weight gain between May 2018 to December 2019. At the May 2021 virtual hearing, the Veteran testified that he complained of fatigue, headaches, and the need for naps during service. He related that his bunk mate would often complain about his snoring, and after deployment, his girlfriend would tell him that she had to shake him during his sleep because it sounded like he was choking. He reported that he did not know what OSA was until he sought treatment immediately after his return from deployment. In a July 2021 medical statement, the provider of the January 2020 private medical statement (a physician's assistant) provided another opinion in support of the Veteran's claim. He noted that he provided medical care for the Veteran during the 2006-2007 deployment and was familiar with his active-duty medical history and his VA treatment from 2006 to the present. The provider reiterated that during deployment, they were exposed to environmental factors such as extreme heat, blinding sandstorms, burn pit smoke, and jet fumes. He noted that during deployment, the Veteran complained of insomnia, headaches, anxiety, difficulty sleeping, waking up with his heart racing, feeling the need to nap often, and shortness of breath. Bupropion for anxiety was prescribed, and the provider noted that anxiety caused increased cortisol, which causes fat to build up in the stomach, and that the longer a person experiences stress and anxiety, the more weight is gained. He noted that weight gain is a major aggravating factor of sleep apnea. The examiner related that fatigue and sleep deprivation due to lack of off days are likely also aggravating factors in the Veteran's development of OSA during deployment. He noted that the Veteran had a diagnosis with allergic rhinitis (for which a nasal spray was prescribed), and that nasal congestion is also a factor in the development of OSA. The provider stated that during deployment, their medical capacity did not include the ability to diagnose or treat OSA via sleep studies or by prescribing CPAP machines. He noted that the Veteran was treated at a VA facility shortly after his return from deployment and reported symptoms of coughing, daytime somnolence, chronic fatigue, and headaches, and that OSA was diagnosed in early 2008. The provider opined that it was more likely than not that the Veteran's exposure to the above environmental conditions and aggravating factors suffered during his deployment to Iraq, caused, contributed to, and aggravated his disability (OSA). It is not in dispute that the Veteran has OSA (it has been diagnosed by sleep study). There are conflicting medical opinions in the record regarding the etiology of the OSA, and the most prominent among them (considering supporting rationale) are the January 2020 and July 2021 opinions in support of the Veteran's claim and the January 2020 VA opinion against the Veteran's claim. Weighing the relative probative values of the opinions, the Board finds more probative and persuasive the July 2021 opinion by the private provider who served with the Veteran and provided medical treatment throughout his time in service, to include his 2006-2007 deployment. He noted the various environmental exposures and the aggravating factors for OSA that the Veteran experienced, such as fatigue due to inconsistent sleep schedule and nasal congestion, and the complaints therein which support that the Veteran's OSA became manifest in service, warranting a finding that it was incurred in service. The provider cites to the Veteran's reports (although not specifically noted in the STRs) of complaints likely related to OSA and post service medical evidence that support the conclusion reached. The provider also indicated that during deployment, their medical capacity did not allow for ability to diagnose or treat OSA via sleep studies or to treat it by providing CPAP machines, suggesting that OSA would have been diagnosed sooner had such been available. As the provider is a medical professional, the Board has no reason to question the explanation identifying symptoms and other factual supporting evidence that OSA became manifest in service. The Board finds less probative and non-persuasive the January 2020 opinion against the Veteran's claim. The provider focused solely on aggravation and ignored the Veteran's lay statements and those from his friends regarding the possible onset of his OSA during service. While he identifies a significant post service factor for the development of OSA (substantial weight gain between 2018 and 2019), such observation does not overcome that, if onset of OSA during service (i.e., his first period of service) is shown, service connection is warranted. In summary, the Board concludes that the evidence is at least in equipoise regarding whether the Veteran's OSA became manifest (was incurred) in service; competent medical evidence (an opinion by a medical provider who served with and treated the Veteran during his deployment) and lay evidence (statements from a fellow servicemember and an ex-girlfriend that note the Veteran's OSA symptoms during and shortly after service) support that it became manifest during service. Accordingly, service connection for OSA is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.