Citation Nr: 21068780 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-49 990A DATE: November 12, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. Symptoms of obstructive sleep apnea, including excessive snoring, cessation of breathing, and feeling tired despite sleep, had onset during service. 2. The symptoms of obstructive sleep apnea continued since service separation and were diagnosed as sleep apnea. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from January 1995 to January 1999, from May 2002 to January 2003, and from August 2008 to September 2009, which included service in the Persian Gulf. The instant matter is on appeal from a July 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for obstructive sleep apnea. The instant matter has been before the Board of Veterans' Appeals (Board) previously. An August 2019 remand directed the RO to obtain a VA examination and nexus opinion for the issue of service connection for sleep apnea. As the examination and opinion have been procured, there has been substantial compliance with the terms of the remand and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Direct Service Connection for Obstructive Sleep Apnea is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The evidence shows a current diagnosis of obstructive sleep apnea. See December 2013 Private Treatment Record (Global Sleep study); December 2019 VA Examination (interpreting the results of the sleep study). The Veteran contends that the obstructive sleep apnea had its onset during service in Iraq in 2008 to 2009. An "apnea" is a "cessation of breathing" and that "obstructive sleep apnea" is "sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep. In adults, it is seen primarily in middle aged [40-60 year old] obese individuals, with a male predominance." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 118 (32nd ed. 2012). After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether there was an onset of symptoms of obstructive sleep apnea in service and since service separation, i.e., whether obstructive sleep apnea that was diagnosed after service was "incurred in" service for purposes of direct service connection pursuant to 38 C.F.R. § 3.303(d). The Veteran has provided three competent and credible lay statements that pertain to sleeping symptoms while in Iraq in 2008 to 2009. In a September 2015 lay statement, R.S. wrote that he and the Veteran shared the same sleeping tent and/or bay, that the Veteran frequently kept him and others up due to loud snoring, that he at times had to check on the Veteran because it sounded like he would stop breathing and it sounded like he was choking or had something stuck in his throat, and that the Veteran's snoring was loud and prolonged and would wake R.S. up at night. In a September 2015 lay statement, L.G.D. wrote that he noticed the Veteran's excessive snoring while they were housed in a community tent and that many people would wake up the Veteran so that he would stop snoring, that L.G.D. noticed before waking up the Veteran that he would stop snoring for a few seconds and continue snoring, sounding as if he was having difficulty breathing, and that L.G.D. told the Veteran that his snoring sounded more like he was trying to get air, almost as if he was choking. In a September 2015 lay statement, A.F.R. wrote that he slept in the same tent or area and on many occasions had to check on the Veteran because of obnoxious loud snoring where he appeared to stop breathing. A.F.R. wrote that he would have to grasp and move the Veteran roughly to make sure he was breathing properly. In addition to the lay statements, the service treatment records contain a record related to sleep symptomatology. In an August 2009 post-deployment health assessmentthe post-deployment health assessment that would have immediately followed the symptoms that the veterans described in the lay statementsthe Veteran marked that he did not go to sick call and was not confined to his quarters or on a profile, but that he was still bothered by problems sleeping or still feeling tired after sleeping since and during deployment. This health assessment provides contemporaneous evidence, during service, of the symptoms that the later lay statements described were present during service, and that the Veteran has asserted continued after service. The Board finds that the evidence is at least in equipoise on the question of whether the Veteran had obstructive sleep apnea symptoms that began during service and continued since service separation, thus tending to show direct service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a),(d). Resolving reasonable doubt in the Veteran's favor, the Board finds that the currently diagnosed sleep apnea began during service, so was incurred in service. The Board is granting the (direct) service connection claim based on evidence, including that pertinent to service, which establishes that the obstructive sleep apnea began in service and was so "incurred in" service. The finding that the Veteran has had obstructive sleep apnea symptoms since service is supportive of the claim overall because it tends to show that the symptoms that began in service were the basis for the later diagnosed obstructive sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that were later diagnosed as Meniere's disease). The private treatment record reflects that the Veteran was diagnosed with obstructive sleep apnea approximately four years after service separation. The Veteran contends that he sought help for sleep-related difficulties from an allergist, but that it took the extra time to have someone willing to order a sleep study. See February 2017 VA Form 9. Three servicemembers who lived with the Veteran during the 2008 to 2009 deployment credibly conveyed that the Veteran showed sleep disordered symptoms during the deployment. The Veteran asserted in the post-deployment health assessment that he had sleep-related difficulties during the deployment. Such evidence tends to show that the symptoms of obstructive sleep apnea had onset during service, that is, shows that sleep apnea was "incurred in" active service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria or service connection for obstructive sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. While service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, as the Board in this case is granting direct service connection, the theory of presumptive service connection has been rendered moot. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.