Citation Nr: 21067777 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-36 840 DATE: November 5, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his sleep apnea began during active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2003 to March 2004 and from June 2004 to May 2005 in the U.S. Marnie Corps with additional service in the Marine Corps Reserve. The Veteran has qualifying service in the Southwest Asia theater of operations during the Persian Gulf War and was awarded the Sea Service Deployment Ribbon, Global War on Terrorism Service Medal, Armed Forces Reserve Medal with "M" Device. This matter comes before the Board of Veterans' Appeals (Board) from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was most recently before the Board in July 2019, at which time the issue on appeal was remanded for additional development. This case has now returned to the Board for appellate consideration. The issue of service connection for tinnitus was also previously before the Board; however, the issue was granted in full by the RO in a June 2020 rating decision. Accordingly, the issue is no longer on appeal. The Veteran contends that his diagnosed obstructive sleep apnea had its onset during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Certain chronic diseases, including sleep apnea (as an organic disease of the nervous system) will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board finds that the first two elements of service connection have been satisfied. The Veteran has a current diagnosis of sleep apnea. See November 2019 VA Examination. Additionally, the Veteran's service treatment records (STRs) show that he complained of problems sleeping and feeling tired after sleeping during service. See STRs received August 2012. Regarding the third element, nexus, the evidence consists of a VA examination and lay statements. The Veteran was afforded a VA examination in November 2019. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale stated that there are lay statements that inform of symptoms related to sleep apnea; however, the record is negative for evaluation, treatment, or diagnosis of sleep apnea during service or one year after separation. The rationale also stated that the Veteran was diagnosed with sleep apnea in 2015, 10 years after active-duty service. The Board affords this opinion little probative weight because the VA examiner relied on the lack of contemporaneous medical records of complaints or treatment during and since service and failed to adequately consider the lay statements of record. During the November 2019 VA examination, the Veteran reported that during service, his bunk mates informed him that he snored loudly, stopped breathing while asleep at night and his bunk mates would attempt to awaken him but were unsuccessful. The Veteran also reported that his wife informed him that he exhibited these symptoms as well. The examiner noted that the Veteran's symptoms progressed since their onset. Additionally, the Veteran's wife stated that she has known the Veteran since he returned from Iraq in the summer of 2005 and married him in March 2006. She stated that she has noticed the Veteran would snore very loudly since before they were married. See October 2016 Lay Statement. Additionally, the Veteran's wife stated that the Veteran would stop breathing in his sleep and sometimes it would sound as if he was gasping for air and choking in his sleep. Id. The Veteran's wife also stated that it was common for the Veteran to always feel sleepy and tired throughout the day and would take naps during the day if he could. Id. The Veteran and his wife are competent to describe his symptoms as they are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board finds the statements credible and entitled to great probative weight as they are internally consistent and supported by the other evidence of record. Based on the foregoing, after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea began during active service and that he has had sleep apnea ever since. See 38 C.F.R. § 3.102. Accordingly, service connection for sleep apnea is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.