Citation Nr: 21066507 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-07 088 DATE: November 1, 2021 ORDER Entitlement to for service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran is presumed to have been sound on entry to service and the evidence indicates that he developed sleep apnea during service. CONCLUSION OF LAW The criteria for service connection for OSA are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1968 to January 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, and again in August 2021, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law judge. A transcript of the hearing has been associated with the claims file. It appears that the Veteran's complete service treatment records (STR) could not be obtained. Only the Veteran's entry examination report and discharge examination report are of record. It is noted that in such situations in which STRs are missing, not only does the Board have a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule, but an enhanced duty to assist. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran submitted his claim for service connection for sleep apnea in May 2016. On his August 2017 notice of disagreement, he asserted that he has had sleep apnea since he was in service. In January 2018 the Veteran pointed out that it was not until 1981 that CPAP therapy through a nasal mask was invented, sparking increased interest in sleep medicine practice and research. He maintained that it is unreasonable to assume that he would have sought treatment for sleep apnea prior to 1990 despite having obvious symptoms. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Finding all doubt in favor of the Veteran, the Board finds that the Veteran developed sleep apnea during service. The Veteran's assertions that he had sleep apnea symptoms during service are supported by an August 2017 statement from the Veteran's wife. She stated that during service the Veteran snored and stopped breathing at night, which alarmed her. She reported that after service it kept getting worse. Also supportive is an April 2018 statement from a fellow veteran. He stated that he served with the Veteran in Vietnam. He reported that although other guys in the section snored, the Veteran's snoring was distinctive because it was not rhythmic. It was loud and erratic. He stated that he had never heard of apnea back then, but what he remembers of the Veteran's snoring sounds like it. The Board notes that in a January 2018 letter a private physician opined that the Veteran had sleep apnea during service. The Board further notes that in June 2021 a VA physician stated that it is clear that the Veteran most likely had sleep apnea while on active duty. The Board recognizes that there is some evidence that the Veteran had sleep apnea prior to service. However, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran's May 1967 examination for entry into service does not indicate that the Veteran had sleep apnea and therefore he is presumed to have been in sound condition upon entry into active service, i.e., it is presumed that he did not have sleep apnea prior to entry into service. There is some evidence that the Veteran had sleep apnea prior to service, however, the Board finds that such does not amount to clear and unmistakable evidence that the Veteran's sleep apnea existed prior to service. On a June 2021 medical opinion disability benefits questionnaire, the physician checked the box indicating that sleep apnea clearly and unmistakably existed prior to service. However, in her rationale she only stated that it was likely that the sleep apnea existed prior to service. The Board also does not find that the January 2018 opinion by the private physician that the Veteran has had sleep apnea his entire life to rise to the level of clear and unmistakable evidence that the Veteran had sleep apnea prior to service. Consequently, the Board finds that this and the other evidence of record does not rise to the equivalence of clear and unmistakable evidence demonstrating that the sleep apnea existed prior to service. As the presumption of soundness has not been rebutted and there is competent evidence that the Veteran experienced sleep apnea during service, and ever since, service connection for sleep apnea is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.