Citation Nr: 21072573 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-33 825 DATE: December 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's sleep apnea began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to January 2010. His awards include the Army Commendation Medal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Board remanded the Veteran's appeal to the RO for further evidentiary development. Entitlement to service connection for obstructive sleep apnea The Veteran contends, among other things, that he has sleep apnea which had its onset during service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of sleep apnea, and that the evidence is at least evenly balanced as to whether this disability began during active service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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). Turning to the evidence, the first element of service connection, that of a current disability of sleep apnea, has been met. For instance, the report of a July 2021 VA sleep apnea examination indicates that the Veteran has been diagnosed as having obstructive sleep apnea. Moreover, there is evidence of sleep apnea symptoms in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that he would awaken choking and gasping for air during service, that fellow service members witnessed his loud snoring and disrupted sleep, and that he was never refreshed after sleeping. He was never tested for sleep apnea during service, but in January 2015, he completed a home sleep test through the Tripler Army Medical Center. The clinician diagnosed mild obstructive sleep apnea based on an Apnea-Hypopnea Index (AHI) of 8. The Veteran's DD Form 214 reflects that he served in a designated imminent danger pay area (Iraq) from November 2007 to November 2009. He has reported that while serving in Iraq, his unit was attacked by enemy mortar fire (see the report of a December 2009 VA psychiatric examination). A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran is competent to report his exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts his reports. Therefore, the Board finds that the Veteran's reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Iraq. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran's reports of sleep problems in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Iraq. There is no clear and convincing evidence to the contrary. During the December 2009 VA psychiatric examination (which was conducted during service), the Veteran reported that he experienced impaired sleep. Also, in February 2016, the Veteran submitted a lay statement from fellow service member J.A. who was deployed with the Veteran from 2007 to 2009. The fellow service member stated "I remember having to get up in the middle of the night, countless times to wake him up to make sure he was breathing properly. I would hear him making a choking and gagging sound at least four times a week." Therefore, in light of the lay reports from the Veteran and J.A., the presence of sleep problems in service is established. Moreover, the Veteran's post-service medical records and lay statements indicate that he has experienced continuous sleep apnea symptoms in the years since service. The Veteran is competent to report sleep apnea symptoms in service and continuous symptoms in the years since service, and J.A. is competent to report his observations of the Veteran's symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence to explicitly contradict the lay reports of record and they are generally consistent with the evidence of record. Thus, the Board finds that the lay reports of sleep apnea symptoms in service and continuous symptoms in the years since service are credible. An October 2015 VA medical opinion concluded that the Veteran's sleep apnea was less likely than not related to his active duty service because it was not diagnosed until after his military service and was more likely caused by aging and weight gain. The examiner stated that the sleep impairment noted during the December 2009 VA psychiatric examination was in reference to insomnia due to anxiety, not sleep apnea. An addendum VA medical opinion was prepared in June 2016. The VA physician again determined that the Veteran's sleep apnea was less likely than not related to his military service because, although J.A.'s statement indicated a history of possible apneic episodes in service, the mere presence of apneic episodes is not evidence of a diagnosis of sleep apnea. The examiner explained that symptoms such as choking or gagging as described in J. A.'s statement are not sufficient for a diagnosis of sleep apnea because a diagnosis of sleep apnea requires an apnea hypopnea index (AHI) of 5 measured by polysomnography (a sleep study). The examiner said that a person could stop breathing with choking and gagging sounds every 15 minutes while asleep resulting in an AHI of 4, and this would be normal and not a diagnosis of obstructive sleep apnea. Therefore, the examiner said that the symptoms discussed in J.A.'s letter do not show that the Veteran had sleep apnea at the time. In July 2021, a VA contractor completed an examination for sleep apnea. The Veteran said that his sleep apnea had its onset in 2008 during his active duty service, when he would awaken, gasping for air, and he said that the disability had worsened since that time. The examiner found that the Veteran required a CPAP machine and noted that mild sleep apnea was first diagnosed in January 2015. A medical opinion was also prepared in July 2021. Although this opinion only addresses whether the Veteran's sleep apnea was caused or aggravated by his service-connected hypertension, the VA physician explained, in pertinent part, that the Veteran's sleep apnea was more likely caused by his obesity, that stress in the war zone may have caused the Veteran to eat more, and that he gained weight due to the military diet and excess calories. This weight gain caused enlargement of the tongue, tonsils, and adenoids, and this obstructed the posterior pharynx and airway when the Veteran fell asleep. If insufficient air is circulated to the brain, then daytime drowsiness and fatigue is inevitable, causing poor job performance. The October 2015 and June 2016 opinions are of limited probative value because the October 2015 opinion does not address the lay evidence of sleep symptoms (snoring, disrupted sleep, and gasping for air) during service, the June 2016 opinion does not address the Veteran's snoring and daytime fatigue during service, both opinions are largely based on the absence of a clinical diagnosis of sleep apnea during service, and they do not discuss the competent and credible reports of continuous sleep apnea symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the lay reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). This is particularly true in the case of a combat veteran. Congress enacted the combat statute because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Thus, to the extent that the October 2015 and June 2016 opinions were based on a lack of report and treatment for sleep apnea symptoms during service, this is precisely the reasoning that the combat law was designed to prevent. Moreover, although the July 2021 opinion only specifically addresses whether the Veteran's sleep apnea is caused or aggravated by his hypertension, the physician's explanation that the Veteran's stress during service caused him to gain weight due to his military diet and that this, in turn, resulted in obesity and sleep apnea, at least suggests that the Veteran's sleep apnea had its onset during service. In sum, the evidence reflects that the Veteran experienced sleep symptoms in service and that there have been continuous sleep symptoms in the years since service. He also experiences current sleep apnea. There is no adequate medical opinion that is contrary to a conclusion that the current sleep apnea had its onset in service. (CONTINUED ON NEXT PAGE) Thus, the evidence is at least evenly balanced as to whether the Veteran's sleep apnea had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 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"). Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.