Citation Nr: 21067519 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-19 169 DATE: November 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), is granted. FINDING OF FACT The Veteran's OSA was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2005 to May 2018. The issue comes before the Board of Veterans' Appeals (Board) from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). Entitlement to service connection for OSA is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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, 321 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with OSA via sleep study in July 2018, which is approximately two months after leaving service. She contends that her disability started in service. The Veteran's service treatment records (STRs) show numerous complaints of lack of adequate sleep. For example, STRs dated in January 2015 noted that the Veteran complained of "frequent waking at night, gasping for air, daytime somnolence, waking with the headache. [Veteran] now able to fall asleep with medication but feels difficulty breathing when falling asleep." STRs also show that the Veteran was twice scheduled for sleep study consultations. During her November 2017 General Medical Examination/Separation Health Assessment Disability Benefits Questionnaire, it was noted: "Psychiatric Sleep issues." In her December 2018 Notice of Disagreement (NOD), the Veteran reported that she continually told doctors in service that she was nightly gasping for air, snoring, and waking up groggy. Also, she had an in-service sleep study test in July 2017, but because of the anxiety with taking it, she was referred to take it at another time. In her May 2019 dated Form 9, she explained that each time she told doctors about her sleep issues, they just gave her sleeping medication. To determine the possible etiology of her OSA, the Veteran was afforded a VA examination in November 2018. The examiner provided a negative nexus to service and explained, there is no clearly defined pathway, whereby her sleep disturbance or insomnia condition can play a vital role in the aggravation of an obstructive sleep apnea syndrome. Furthermore, the [V]eteran was not seen for any breathing-related sleep problem during active duty. Sleep apnea (obstructive) is not listed as a complication of insomnia condition either. Furthermore, sleep disturbance or insomnia has no effect on the structure and functional control of the nasopharyngeal and pharyngeal airways. There is absolutely no objective evidence to support aggravation of the [V]eteran's sleep apnea condition and vice versa. The Board finds this examination incomplete, as the examiner neglected to consider competent and credible evidence of the Veteran's numerous complaints in service of her nightly gasping for air, snoring, and waking up groggy, and the continuation of said symptoms, following service. Barr, 21 Vet. App. 303 (2007). The examiner also only addressed the relationship between OSA and insomnia. The Veteran competently testified that her disability was incurred in service. Her treatment records show complaints of nightly gasping for air, snoring, and waking up groggy. Significantly, she was diagnosed with mild sleep apnea within two months of separation from service. It is reasonable to conclude that the sleep apnea detected by the sleep study was present prior to the date of the sleep study. Given the lack of an adequate medical opinion, there is no contrary evidence of record. Thus, the weight of the evidence, therefore, supports a nexus between the Veteran's current OSA and her military service. Accordingly, affording the Veteran the benefit of the doubt, the elements of a service connection claim are satisfied. Service connection for OSA is herein granted. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.