Citation Nr: 21070729 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 20-18 871 DATE: November 24, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT After resolving reasonable doubt in the Veteran's favor, his OSA was incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from September 1988 to November 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran submitted new medical evidence within 1 year of the rating decision and it did not become final. 38 C.F.R. §§ 3.156(b). The Board notes that VA acknowledged a Privacy Act request from the Veteran's representative in April 2020. Although it is unclear if the records were provided, as the issue is being granted the Board finds this to be moot. In November 2021, the Veteran testified at a virtual hearing before the undersigned. Service Connection for OSA Service connection may be established 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 requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran was diagnosed with moderate obstructive sleep apnea after undergoing a sleep study in March 2018. In November 2021, the Veteran testified that his sleeping issues began in 1990 and had continued since. The Veteran testified that he would wake up sweating or gasping for air. A November 2021, lay statement from the Veteran's former roommate noted that the Veteran did not have a snoring problem when they met in 1989. His roommate first noticed the Veteran's sleeping issues upon his return from the Gulf War. Over time it continued to worsen. This was corroborated in a November 2021 lay statement from the Veteran's ex-wife. The Board finds the Veteran and the lay statements are credible as to the assertion that his symptoms began in service and have continued since. In June 2018 and February 2020, VA examiners provided negative opinions for secondary service connection of the Veteran's OSA to his service-connected posttraumatic stress disorder (PTSD). Neither examiner discussed inception in service. As such, the Board assigns no probative value to the opinions for direct service connection of the Veteran's OSA to his service. Given the above, after resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence reflects the Veteran's sleep apnea symptoms first manifested in service, thus demonstrating incurrence, and have continued since his discharge. As a result, service connection for obstructive sleep apnea is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.