Citation Nr: 21071899 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-02 636 DATE: December 1, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The probative evidence of record is at least in relative equipoise that the Veteran's sleep apnea is related to active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been 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 served in the United States Coast Guard on active duty from July 1981 to January 1982, March 2003 to July 2003, and from November 2010 to September 2014. The issue comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied the Veteran's claim of entitlement to service connection for a sleep apnea disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Remand (JMR). The Court found that the Board failed to present an adequate statement of reasons or bases in support of its finding that the Veteran's sleep apnea clearly and unmistakably was not aggravated by active-duty service. Pursuant to the JMR, the Court vacated and remanded the matter to the Board. Subsequently, in March 2021, the Board remanded to provide further development. The issue was before the Board again in August 2021. The Board remanded to provide an additional examination with medical opinion. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for sleep apnea The Veteran contends that he suffers from obstructive sleep apnea which was incurred in active-duty service. The Veteran submitted a lay statement from a fellow servicemember dated in June 2021. The servicemember reported serving with the Veteran during 2000 through 2003. The servicemember reported sharing a duty room with the Veteran, and that the servicemember witnessed the Veteran snoring heavily followed by brief periods where the Veteran appeared to stop breathing. The servicemember reported that the Veteran's snoring was so loud it was difficult to sleep. The record contains the Veteran's private sleep study from June 2008. The private polysomnogram revealed the Veteran's diagnosis of severe obstructive sleep apnea. The Veteran underwent a private sleep study in October 2012. The Veteran complained of daytime sleepiness, snoring, and witnessed apneas. The private physician noted the Veteran used a CPAP machine since 2008 with some success. The RO provided the Veteran an examination in May 2021 addressing the Veteran's sleep apnea condition. The VA examiner confirmed the Veteran's current diagnosis of obstructive sleep apnea, which was originally diagnosed by sleep study in 2008. The VA examiner noted symptomology is not diagnostic, and it is common for symptoms to be present with a negative study for obstructive sleep apnea. Further, the VA examiner noted the Veteran's positive polysomnogram in 2008 was not proximal to his period of service in 2003; therefore, not a reasonable nexus to establish service connection. Moreover, the VA examiner opined that there was no reasonable aggravation of the Veteran's sleep apnea condition during the Veteran's period of active service from November 2010 to September 2014, as generally, sleep apnea is not a disease that worsens for reasons other than worsening obesity. The Veteran submitted a private medical opinion from his treating otolaryngologist dated in September 2021. The private treating physician confirmed the Veteran's current diagnosis of obstructive sleep apnea. The private physician noted the Veteran's polysomnograms from 2008 and 2012. Additionally, the Veteran's treating physician noted that the Veteran reported symptoms associated with sleep apnea years prior to his first diagnosis in 2008. The private physician noted the Veteran's accounts of his fellow servicemembers and bunkmates, who complained about his loud snoring. The Veteran's wife also expressed concerns about his breathing problems and very loud snoring while sleeping. The private otolaryngologist also noted the lay statements offered by the Veteran's fellow servicemember recounting the Veteran's loud snoring and witnessed apneas during service in 2003. Additionally, the Veteran reported to the private physician that he would routinely stop at a rest stop to nap during his one-hour commute from work. The private otolaryngologist provided the medical opinion that it was at least as likely as not that the Veteran's obstructive sleep apnea occurred in service. The private physician noted the Veteran's symptoms of hypersomnolence, very loud snoring, and apnea were present and identified by others during his active service and eventually diagnosed as obstructive sleep apnea. The Veteran's treating otolaryngologist documented the Veteran's dramatic increase in body mass index (BMI) during his years of service, and noted it was largely accepted in his practice and established medical literature that weight increase during service was known as an aggravating factor to obstructive sleep apnea. Resolving the evidence in a light most favorable to the Veteran, the Board finds the September 2021 private otolaryngologist's medical opinion to be probative evidence that the Veteran's obstructive sleep apnea had its onset in and is otherwise related to active duty. The Board assigns probative weight to the treating otolaryngologist's medical opinion, as the opinion was supported by a fully articulated rationale with consideration of the Veteran's medical history, established medical literature, and a thorough examination of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). Additionally, the Board recognizes the lay statements submitted by the Veteran and the Veteran's fellow servicemember are consistent with the private physician's assessment that the Veteran's symptoms of sleep apnea were present during active-duty service. The Veteran and fellow servicemember are competent to provide lay evidence addressing observable symptomatology, to include snoring, witnessed apneas, and hypersomnolence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the lay and medical evidence of record establishes the Veteran's obstructive sleep apnea is related to the Veteran's active-duty service. The Board recognizes the negative nexus opinions regarding the Veteran's obstructive sleep apnea provided by the May 2021 examination and subsequent addendum opinions by the same VA examiner in August 2021 and September 2021. However, the Board finds that, given the Veteran's competent lay statements and the September 2021 private medical opinion establishing the onset of the Veteran's obstructive sleep apnea in service, the evidence is at least in relative equipoise on this matter. Further, the Board finds the May 2021 negative nexus opinion failed to fully address whether clear and unmistakable evidence showed the Veteran's period of service from November 2010 to September 2014 did not aggravate the Veteran's established diagnosis of obstructive sleep apnea from the June 2008 diagnosis. The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for the Veteran's obstructive sleep apnea is granted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.