Citation Nr: 21069871 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-44 388 DATE: November 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's OSA onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1998 to September 2000 and October 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board previously remanded this matter in May 2019 and in June 2020 for medical nexus opinions. Notably, the Board previously found that the prior unfavorable June 2017 and February 2020 nexus opinions were inadequate; thus, the Board gives no weight to these opinions. Moreover, the unfavorable November 2020 opinion is also inadequate with regard to whether the Veteran's OSA onset in service, as the examiner found that: "it is impossible to say that [the Veteran's] complaints were sleep apnea when there is a 9+ year gap from symptoms to diagnosis." This opinion is inadequate because the examiner impermissibly relied upon the non-existence of an in-service diagnosis in service treatment records (STRs), and the passage of time, as the sole bases for her opinion against the claim. However, the prior remand specifically instructed the examiner to consider the lay statements of the Veteran, D.B., P.H., and V.V., particularly with regard to observed in-service sleep symptomatology. While the examiner mentioned these statements, she did not address them in rendering an opinion, instead reverting to the previous examiners' insufficient, conclusory rationale. Thus her opinion is inadequate, as are all others of record against the claim. Moreover, as the Board has remanded this claim multiple times for an adequate medical opinion but has been unable to obtain one, and there is adequate information to adjudicate, the Board refuses to remand to solely develop the claim for negative evidence. See Andrews v. McDonough, 34 Vet. App. 151 (2021). The Veteran maintains that his OSA onset in service. See, e.g., August 2017 VA Form 9, Appeal to the Board of Veterans' Appeals. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). It is undisputed that the Veteran has a current diagnosis of OSA, which satisfies the first element of service connection. See, e.g., August 2013 record from Sleep Disorders Centers of the Mid-Atlantic (identifying the Veteran's OSA as "moderate"). Regarding the second element, in-service incurrence or aggravation of a disease or injury, the Veteran's November 1997 entrance exam contained no notation of OSA or sleep problems. Thus, he is presumed sound at service entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Further, the Veteran declined a separation medical examination in August 2000; thus, the Board does not have complete information regarding his physical condition at separation from his first period of active service. See August 2000 Medical Examination for Separation, Statement of Option. In addition, the Veteran's STRs from his period of active duty from October 2003 to October 2004 are not available, and in July 2014, the Veteran was notified of the same and given an opportunity to provide VA with any such records in his possession. See July 2014 Correspondence; 38 C.F.R. § 3.159(e). While it is uncertain that such records would contain dispositive information, at minimum, their non-availability requires the Board to give heightened consideration to the benefit of the doubt doctrine in favor of the Veteran. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Here, there is competent and credible lay evidence establishing the presence of symptoms consistent with obstructive sleep apnea in service, and there is no 2004 separation medical examination establishing the absence of obstructive sleep apnea at separation. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran incurred sleep symptoms in service, including daytime somnolence and snoring and choking during sleep, and element two is met. Finally, the Board must address whether a nexus exists between the Veteran's in-service symptoms and his present disability. Here, there is competent and credible lay evidence of symptoms in service and subsequent to service, culminating with the Veteran's diagnosis of OSA, with an accompanying nexus opinion relating the same to such symptoms by a private physician who specializes in diagnosing and treating sleep disorders. See, e.g., July 2014 statement of D.B. ("I am aware of some of the difficulties regarding tiredness and energy levels during [the Veteran's] military service.... They continued after his service and he has since been diagnosed with sleep apnea."); July 2014 letter from Dr. J.B. While the Board agrees that Dr. J.B. did not provide adequate rationale in support of his nexus opinion, when considering it with the credible lay statements of record, the fact that the Veteran's reported symptoms have not been attributed to any etiology other than OSA, the missing STRs, the inability to remand solely for negative evidence and the benefit of the doubt doctrine, the finds that the nexus element is met in this case. In other words, as there is positive evidence establishing an onset of symptoms of sleep apnea in service, persistence of those symptoms until the Veteran's ultimate diagnosis with obstructive sleep apnea, and no adequate nexus opinion against the claim, all elements of service connection are established, and entitlement to service connection for OSA is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.