Citation Nr: 21070857 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-18 290 DATE: November 26, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's OSA was at least as likely as not incurred during service. CONCLUSION OF LAW The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from September 1976 to September 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in July 2019, March 2021, and August 2021 and was remanded for development. The most recent VA examination was performed in May 2021. While the Board finds that this VA opinion is inadequate, remand is not warranted in light of the grant of service connection. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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." Jandreau, 492 F.3d at 1377; and Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran maintains that his OSA manifested during service and that his symptoms have continued since discharge. The Board finds that the elements of entitlement to service connection for OSA have been met. With respect to current disability, the Veteran was noted to have stopped breathing while hospitalized for post-operative care after a spinal surgery in November 2013. At this time, his wife reported that the Veteran has stopped breathing in his sleep, snored loudly, and napped during the day for years. In January 2014, a sleep study was performed and revealed the presence of severe OSA. Accordingly, a current disability has been established. With regard to in-service incurrence, the Veteran reported that he noticed a change in his sleep behavior during bootcamp. He elaborated that people would tell him that he would stop breathing in his sleep, but he was afraid to tell his superiors and he did not have time to seek medical attention. Consistent with these reports, the Veteran's wife reported on numerous occasions that the Veteran had difficulties with sleep. Most notably, she indicated in 2015 that she had known the Veteran for 32 years, and during this time, the Veteran has tossed and turned in his sleep, snored so loud he wakes himself up, and stopped breathing to the point that she has to wake him up. Additionally, the Veteran's friend reported in a February 2015 buddy statement that he grew up with the Veteran and he witnessed the Veteran snoring and stop breathing when the Veteran would stay at his house. The Board notes that the Veteran, his wife, and his friend are competent to report observable events within the realm of their personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as they have been consistent throughout the Veteran's appeal. Accordingly, the Board finds that the competent and credible lay statements of record sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current OSA. The record contains four negative opinions addressing this question. However, none of these opinions adequately address the lay statements on record. In November 2014, a VA examiner reasoned that there was no pertinent evidence in service treatment records (STRs) and the Veteran's military examinations were all normal. The examiner further noted that there was a 34-year gap between when the Veteran separated from the military and when he was diagnosed with OSA. Similarly, a December 2019 VA examiner reasoned that there was no pertinent evidence in STRs, and the Veteran's separation examination was normal. The examiner also concluded that there is no evidence on record that the Veteran sought medical attention for his condition within a year after separation from service. In April 2021, another VA examiner acknowledged that the Veteran's wife reported that the Veteran had difficulties with sleep, but she discounted the wife's reports on the basis that OSA was not diagnosed before 2013. She also acknowledged that the Veteran was taking trazadone, a medication that can be given for difficulty sleeping, but she concluded that there was no clear indication in the record as to why this medication was prescribed to the Veteran. Finally, an August 2021 VA examiner also reasoned that the Veteran's OSA was not incurred in or caused by service because he was not diagnosed with the condition until more than 30 years after discharge. Contrary to these opinions, the Veteran maintains that his symptoms for obstructive sleep apnea began in service and have persisted since his discharge. As noted, he has reported that people would tell him he snored and stopped breathing during his sleep in bootcamp. Additionally, the Veteran complained of difficulty sleeping, daytime sleepiness, and difficulties with concentration prior to receiving a diagnosis for OSA in December 2010 and November 2013. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303 (a); see also Jandreau, 492 F.3d at 1377. Consistent with his reports, his wife reported on numerous occasions that the Veteran had sleep issues. As noted, she reported that the Veteran has snored and stopped breathing in his sleep the entire time she has known him, which dates back to 1983. Additionally, the Veteran's friend reported in 2015 that the Veteran snored and stopped breathing in his sleep when the Veteran would stay at his house. Several of the examiners acknowledged these statements but discounted them based on the fact that Veteran did not seek treatment for OSA prior to 2013. However, the Veteran's sleep issues were only addressed at this time because his sleep was observed while he was hospitalized after undergoing spinal surgery. Once he was finally tested in 2014, his condition was characterized as severe. From this evidence, it is reasonable to concluded that the Veteran's OSA predated his diagnosis. Because none of the examiners considered the lay statements of record in connection with the circumstances of the Veteran's diagnosis, the Board finds that their opinions are inadequate. See Reonal v. Brown, 5 Vet. App. 548 (1993). Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran, his wife, and his friend are highly probative in establishing a nexus. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). In sum, the most probative evidence of record, the competent and credible lay statements by the Veteran, his wife, and his friend considered in combination with the circumstances of his diagnosis for OSA, supports a finding that the Veteran's OSA was incurred during his active service. Entitlement to service connection for OSA is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.303(a), (d). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.