Citation Nr: 21072804 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-15 408 DATE: December 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as due to environmental and burn pit exposure, is granted. FINDING OF FACT The Veteran's obstructive sleep apnea is etiologically attributable to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to December 2006 in the United States Army, to include service in Southwest Asia. In November 2019 the Veteran testified at a hearing before the undersigned; a transcript of the hearing is associated with the record. The claim was most recently before the Board in December 2019. There has been substantial compliance with the remand, and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that he has obstructive sleep apnea that is causally related to her active service, to include as due to environmental and burn pit exposure. In August 2021 correspondence, the Veteran's representative phrased the issue as including secondary service connection. The Veteran is service-connected for posttraumatic stress disorder (PTSD), but the representative did not include any argument as to why secondary service connection is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran was diagnosed with sleep in April 2015. 38 C.F.R. § 3.385; see also January 2020 VA examination. The question before the Board is whether the Veteran's obstructive sleep apnea is related to service, his environmental and burn pit exposure, or his service-connected disability. The Board concludes that the Veteran has obstructive sleep apnea that is related to his environmental and burn pit exposure during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's service treatment records (STRs) were silent for complaint, injury, or treatment of any sleep apnea or sleep-related disturbances. Evidence in support of the claim includes the Veteran's own statements and testimony. The Veteran testified at a November 2019 Board hearing that while in service, he spent two years next to one of the largest burn pits in Baghdad. He specifically noted that every day he was breathing in burn pit fumes and smoke; as well as dust kicked up from the tanks and trucks. The Veteran noted that it was "challenging to breathe in Iraq." The Veteran stated that he felt tired no matter how much he slept and that, while in service, his ex-wife noted that he would "stop breathing" while he slept. The Veteran also testified that while in service as an MP in Germany, he went into a burning building without a respirator. The Veteran's wife's statement was read into the record; in it she described how the Veteran did not have sleep apnea prior to joining the Army, but he would currently suffer from severe sleep apnea symptoms if he did not use the CPAP machine. The record includes a negative August 2017 VA opinion, but the Board previously determined that the opinion was inadequate because it was solely focused on a negative answer on a post-deployment during service. It will not be considered further. Pursuant to the December 2019 Board remand, the Veteran was given a VA examination in January 2020 in which the examiner again provided a negative nexus opinion. Prior to offering the opinion, the examiner had elicited the Veteran's history of exposures during service and his ex-wife's reports that shortly after he would snore a lot and had periods where he stopped breathing while sleeping. As rationale for the negative opinion, the examiner referred to an abstract of a 2019 medical journal article that addressed the effect of burn pit exposure on sleep-disordered breathing. Based on that article, the examiner concluded that the Veteran's sleep apnea was less likely as not due to environmental exposure during military service. The Board affords that opinion little probative value because it did not consider the specific facts of this Veteran's case, to include his reported history of symptoms possibly related to sleep disordered breathing shortly after. In August 2021, the Veteran submitted a February 2021 opinion from S.R.B., M.D., PhD. who trained in Internal Medicine and Pharmacology. Dr. S.R.B. concluded that it is "at least as likely as not" that the Veteran's sleep apnea is secondary to burn pit exposure during service. Dr. S.R.B. detailed the Veteran's relevant history and reviewed his service and VA treatment records. The opinion provider said burn pits release dioxin and then noted "numerous" literature findings that show occupation hazards, including dioxin exposure, have strong risk factors for sleep apnea. Finally, the examiner noted that since there was no "clear awareness" of the toxic effects of the burn pits at the time the Veteran was in service, variables such as time exposed, dosage, and route of exposure were never quantified. As result, the factors are unknown variables. The examiner then noted however, that this Veteran has no other viable risk factors for sleep apnea. The examiner appended a detailed list of references used in provided the opinion. The opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the service connection for sleep apnea is warranted. The Veteran has competently and credibly reported that he was exposed to burn pits while in service, and his spouse at the time reported that she observed related symptoms shortly after. The February 2021 positive opinion is probative evidence in support of the claim. Service connection for sleep apnea is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.