Citation Nr: 21072630 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-03 652 DATE: December 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's OSA began during active service. CONCLUSION OF LAW The criteria for service connection for OSA are met. See 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 on active duty in the United States Army from May 1990 to December 1994 and from July 2005 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). While the appeal was pending, the AOJ in an October 2021 rating decision granted service connection for gastroesophageal reflux disease (GERD) with a 10 percent rating effective May 29, 2013 and granted service connection for hemorrhoids with a noncompensable rating effective May 29, 2013. As this represents a full grant of benefits sought on appeal these claims are no longer before the Board. In September 2018 and March 2021, this matter was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The Board noted that the December 2019 and October 2020 VA medical opinions were insufficient for adjudication purposes as they were based on the absence of service treatment records (STR). In August 2021, this matter was remanded to the AOJ for an additional VA medical opinion as the VA examiner did not adequately reconcile this opinion with the lay statements. 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 veteran seeking compensation under these provisions must establish three elements: "(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." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. See 38 C.F.R. § 3.303 (d). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The record establishes that the Veteran has a current diagnosis of OSA. See March 2013 Sleep Study. The first element of Shedden is met. As for in-service incurrence, STRs are negative for treatment or diagnosis of OSA. The Veteran does not argue the contrary. However, the Veteran argues that the initial symptoms of her OSA, which was diagnosed by sleep study in 2013, manifested during active service. She argues that during active-duty service she experienced chest discomfort and would wake up gasping for air out of her sleep. STRs show that she reported chest discomfort. VA treatment records from November 2008, four months after discharge, show that she continued to have sleeping difficulties. Thus, while OSA was not necessarily documented or diagnosed, the Veteran was shown to have some sleep problems in service. The second element of Shedden is met. Regarding the third element of Shedden, the evidence weighs in favor of a medical nexus. An October 2021 VA medical opinion determined that the Veteran's OSA was less likely as not related to service. The VA examiner's opinion was based on the Veteran not reporting symptoms commonly associated with sleep apnea. Those symptoms were listed as: loud snoring, apneic episodes, awakening with gasping or choking, morning headache, awakening with a dry-mouth, difficulty staying asleep, excessive daytime sleepiness, difficulty with concentration during the day, and irritability. The Board interprets the statement of the VA examiner to mean that documentation of in-service complaints of these symptoms would be supportive of the in-service onset of OSA. The examiner provided no reason for discounting the Veteran's report of gasping for air out of her sleep during active duty. The examiner also failed to address her reports of sleep difficulty as noted in the aforementioned November 2008 VA medical record. There was similarly no discussion of treatment records from May 2009, which is still within a year of service discharge, that reference the Veteran's complaints of difficulty staying asleep, excessive daytime sleepiness, insomnia, and persistent daily headaches. See also records dated in November 2009. Such weakens the overall probative value of negative opinion. Indeed, given the strong reliance on the presence of symptoms of persistent headaches, sleep disturbances, and awakening with gasping, and that those symptoms were documented in service or shortly thereafter, the Board interprets the overall findings of the October 2021 examination to be positive. Thus, in light of the foregoing, the Board concludes that the OSA, though not diagnosed until March 2013, had its initial onset during active service or is otherwise etiologically related to the Veteran's active service. See 38 C.F.R. § 3.303 (d). Entitlement to service connection for OSA is granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.