Citation Nr: 21067514 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-26 286 DATE: November 4, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT 1. The Veteran has a current diagnosis of obstructive sleep apnea. 2. Symptoms of sleep apnea began during service and have been present since active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from August 1988 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision from the Regional Office (RO), which denied service connection for sleep apnea. This case was previously before the Board in November 2018 and May 2021. In May 2021 the issue on appeal was remanded to obtain an addendum medical opinion that considered the Veteran's lay statements. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for the sleep apnea, which is a total grant of benefits as to the issue on appeal, the Board need not address Stegall compliance at this time. Service Connection for Sleep Apnea The Veteran contends that symptoms of sleep apnea have been ongoing since about 1990, during service, that he did not have any sleep symptoms prior to service, and that during service he developed problems with restless sleep, daytime fatigue, and that he would wake up with headaches and a dry sore throat. The Veteran asserts that fellow servicemembers in his unit would continuously wake him up due to his loud snoring and gasping while asleep. The Veteran reports that during service he saw the corpsman several times for sleep issues, fatigue, and snoring, and that symptoms of a sleep disorder continued after service, but he was unable to obtain treatment for years thereafter due to a lack of medical insurance and financial means to pay for medical care. See April 2013, June 2016, May 2020 correspondence, August 2021 Statement in Support of the Claim. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. The Veteran's complete service treatment records are not available. See December 2011, May 2018 VA Memorandum. In situations where service treatment records are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a service connection claim, but rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Initially, the Board finds evidence of a current diagnosis of obstructive sleep apnea, as reflected in the October 2009 and December 2018 private sleep studies. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of a sleep disorder in service that continued after service separation, and was later diagnosed as obstructive sleep apnea, i.e., whether sleep apnea was directly "incurred in" service. In this case the service treatment records are unavailable for review. The Veteran has provided credible lay reports of symptoms of a sleep disorder, including restless sleep, loud snoring, daytime fatigue, and awakening with dry sore throat and being awakened by fellow service members due to loud snoring and gasping during his sleep. The Veteran endorsed seeing the corpsman several times due to problems with sleep, snoring, and daytime fatigue during service, which symptoms continued after service separation. See April 2013, June 2016, May 2020 correspondence, August 2021 Statement in Support of the Claim. A fellow servicemember wrote that he served with the Veteran from 1989 through 1992 and witnessed the Veteran snoring so loudly that he had to wake him up on several occasions or sleep in another room at times. The Veteran's wife and co-worker also reported that the Veteran has had problems with poor sleep, drowsiness, and taking naps throughout the day over the years. See March 2013, April 2013, December 2013 correspondence. Post-service treatment notes continue to show symptoms of sleep apnea including non-restorative sleep, fatigue, snoring characterized by interrupted sleep. The record shows initial diagnosis of sleep apnea via sleep study in 2009 with documented events notable for hypopneas associated with decrescendo decrements in nasal pressure and snoring and runs of loud snoring associated with flow limitation during stable non-REM sleep. See October 2009, December 2018 private treatment records; July 2014, October 2015, January 2015, June 2016, March 2018, October 2019 VA treatment records. (Continued on the next page) The VA examiner in November 2019 opined that sleep apnea was not related to service because the condition was first diagnosed in 2009, 17 years after service. In a June 2021 addendum opinion, a different VA examiner opined that the condition is not related to service because the etiology of the condition is obesity and neck circumference. The VA examiner assessed that the Veteran's age (over 40) and large tongue were also risk factors for airway obstruction. Neither examiner considered the presence of symptoms of sleep problems during and since service, including restless sleep, daytime fatigue, loud snoring, and awakening with a sore and dry throat or gasping at times; therefore, the assumed histories are incomplete and incompatible with the facts of this case as found by the Board. As for the assumption of obesity, the earliest sleep study from 2009 noted multiple scored events with snoring associated with flow limitation, with no mention of obesity. As for the assumption about age, the record shows that the Veteran was under age 40 (age 39) at the time of initial diagnosis, and has credibly endorsed a history of sleep disorder symptoms that began years prior to initial diagnosis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis but cannot reject the opinion solely because the history was from the veteran). While sleep apnea is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found the evidence at least in equipoise on the question of whether the Veteran had sleep apnea symptoms that began during service and continued since service separation, which symptoms were later diagnosed as obstructive sleep apnea, thus tending to show direct service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). The Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of a sleeping disability (later diagnosed as obstructive sleep apnea) began in service, so was "incurred in" service. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.