Citation Nr: 21068636 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-06 315 DATE: November 12, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, she had symptoms of obstructive sleep apnea during service and since service separation. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to May 1991. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified during a video-conference Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The Board is aware of the Court's decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. In this case, the Veteran appeared at a Board hearing before the undersigned in October 2017. To date, the Veteran has not requested another hearing. Procedural History In January 2018, the Board remanded the instant claim for further development, to include obtaining a VA medical opinion addressing the likely etiology of the Veteran's obstructive sleep apnea. A June 2018 VA opinion and June 2019 addendum were obtained; however, in October 2019, the Board found both opinions inadequate and remanded the claim for a new VA opinion as to whether the Veteran's sleep apnea had its onset during service or was caused or aggravated by the Veteran's service-connected disabilities. A new VA opinion was obtained in February 2020; however, because a December 2020 rating decision granted service connection for generalized anxiety disorder, which was combined with her previously service-connected memory loss, the Board remanded the claim in April 2021 for an addendum opinion addressing whether the Veteran's sleep apnea was caused or aggravated by the anxiety disorder or memory loss. A June 2021 VA opinion addressed causation and aggravation of the Veteran's obstructive sleep apnea by her service-connected generalized anxiety disorder; however, the examiner's rationale for the negative aggravation opinion was that mental health issues did not cause physical obstruction of the airway. The examiner did not address why it would not aggravate and worsen the already diagnosed sleep apnea. Therefore, the Board again remanded the claim for an addendum opinion to address whether the mental health issues would aggravate the Veteran's sleep apnea. A September 2021 opinion addresses this question. The Board finds substantial compliance with its August 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Accordingly, the Board proceeds with adjudication of the Veteran's claim. Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (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) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2020); Allen v. Brown, 8 Vet. App. 374 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Obstructive Sleep Apnea The Veteran asserts that her obstructive sleep apnea (OSA) onset during her active duty service or was caused or aggravated by her service-connected disabilities. The Veteran has a current diagnosis of OSA. See, e.g., VA Sleep Apnea examinations dated June 11, 2018, February 5, 2020, and September 30, 2021. After a careful review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of the currently diagnosed OSA had their onset during active duty service. The Veteran's service treatment records from her active duty service period are not of record, with the exception of service dental records. However, as detailed below, the Veteran has asserted on appeal that she experienced shortness of breath and sleep impairment during active duty, and the Board observes that 1995 and 1999 examinations conducted during Reserve duty status reflect endorsements of frequent trouble sleeping, shortness of breath, and chronic fatigue. See Reports of Medical History dated February 2, 1995 and July 10, 1999. Although these examinations do not specify when these symptoms onset, the Board recognizes that they are consistent with the Veteran's competent and credible lay statements describing symptoms she experienced during the earlier active duty period from 1990-1991. Post-service VA treatment records reflect that the Veteran underwent a sleep study at the Providence, Rhode Island VA Medical Center (VAMC) in August 1997, which revealed mild sleep apnea or symptoms "highly suggestive" of sleep apnea. See VA Nocturnal Polysomnography Report dated August 20, 1997. During a July 2000 VA outpatient appointment, the Veteran said she had experienced sleep problems for several years. See VA Primary Care Note dated July 11, 2000. Additionally, a VA physician noted that the Veteran "had a sleep study at [the] Rhode Island VAMC where she said she had [approximately] 12 arousals a night." A September 2000 sleep study at the Detroit, Michigan VAMC revealed no apneas, 11 hypopneas, and 11 respiratory events. A neurologist diagnosed dyssomnia associated with restless legs syndrome, depression, and anxiety, but not sleep apnea. See VA Clinical Polysomnographic Report dated September 19, 2000. A November 2010 non-VA sleep study noted a diagnosis of moderate OSA. The report noted that the Veteran described symptoms as snoring and increasing fatigue upon awakening. See Non-VA Medical Record dated December 13, 2010. During the October 2017 Board hearing, the Veteran said her Navy roommates complained about her snoring. See Board hearing transcript dated October 30, 2017 at pg. 7. The Veteran was afforded VA sleep apnea examinations in June 2018, February 2020, and September 2021, all reflecting diagnosis of OSA. Notably, during the February 2020 VA examination, the Veteran described symptoms during active duty service, i.e., that she was told she snored loudly, gasped for air, and stopped breathing. The Veteran said her symptoms had been "ongoing" since their onset, with loud snoring and daytime fatigue continuing to this day. The examiner noted, "She states that she wakes up multiple times at night. She states that she usually sleeps for 2 hours, wakes up, falls asleep half an hour later, sleeps for an hour, wakes up, sleeps for another hour, etc." See VA Sleep Apnea examination dated February 5, 2020. VA medical opinions associated with the examinations as well as VA opinions dated June 2019 and June 2021, six in all, are unfavorable regarding causation and/or aggravation by service-connected disabilities. However, as discussed above, the June 2018 VA opinion and June 2019 addendum were found inadequate by the Board in its October 2019 remand. As previously addressed by the Board, the February 2020 VA opinion addressing causation and aggravation, and the June 2021 VA opinion addressing causation are lacking in probative weight due to deficiencies therein. See Board Remands dated October 22, 2019, April 27, 2021, and August 10, 2021. As such, these opinions are inadequate and need not be considered further in the context of the instant claim. The Board finds the June 2021 VA opinion addressing aggravation, and the September 2021 opinion addressing causation and aggravation deserving of some probative weight as they are based on review of the Veteran's claims file and was therefore familiar with her symptoms, diagnoses, and treatment of her OSA; the opinions are based on review of the evidence of record as well as the Veteran's lay statements; and the opinions contain clear conclusions with supporting data connected by reasoned medical explanations. See Nieves-Rodriguez, 22 Vet. App. at 304. However, the probative weight of the June 2021 and the September 2021 opinions are significantly diminished because they do not address the August 1997 VA polysomnography report revealing sleep apnea or symptoms "highly suggestive" of sleep apnea just six years after the Veteran's separation from service or the Veteran's competent assertions of sleep apnea symptoms during active duty as reflected in the October 2017 Board hearing and the February 2020 VA examination report. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). While another medical opinion could be requested, the Board finds that the current evidence is sufficient to decide the claim. Indeed, on review, the Board finds that the record reasonably supports the Veteran's claim. As shown above, the evidence of record demonstrates that the Veteran experienced symptoms of sleep apnea during service that continued thereafter to the present. See, e.g., VA Nocturnal Polysomnography Report dated August 20, 1997; Service Report of Medical History dated July 10, 1999 (noting frequent trouble sleeping, shortness of breath, and chronic fatigue); VA Primary Care Note dated July 11, 2000; VA Sleep Apnea examination dated February 5, 2020. On appeal, the Veteran has consistently emphasized that she experienced symptoms during service such as loud snoring, gasping for air, and stopped breathing, and that she continues to experience such symptoms since their onset during active duty. See, e.g., id.; Board hearing transcript dated October 30, 2017 at pg. 7. The Veteran is competent to report that she experienced sleep disturbances, snoring, and fatigue during service. Layno, supra. Furthermore, the Board finds the statements of the Veteran with respect to such symptoms both competent and credible. In fact, there is nothing in the record that contradicts her lay assertions regarding her OSA symptoms during active duty. The Board additionally notes that proof of symptoms in service that are later diagnosed may be evidence of service "incurrence." See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(a), (d); Jandreau, 492 F.3d at 1377 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The finding that the Veteran has had OSA symptoms, particularly to include sleep impairment, breathing difficulties, snoring, and daytime fatigue dating from active service, as well as the competent and credible statements of her snoring, sleep impairment, and daytime fatigue that continues to this day, is supportive of the claim overall, because it tends to show that the same symptoms that began in service were the basis for the later diagnosed OSA. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent as to in-service and post-service symptoms). Accordingly, based on the competent and credible lay and medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that her OSA had its onset during active service. See 38 C.F.R. §§ 3.102, 3.303(d). Given the Board's grant of service connection on a direct basis based on the Veteran's symptoms of OSA during service and since separation from active duty, all other theories of entitlement are rendered moot. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.