Citation Nr: 21072837 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-00 165A DATE: December 6, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least in equipoise with regard to showing that the Veteran has sleep apnea associated with his 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 on active duty from June 1988 to April 1994. He served honorably in the United States Marine Corps, with additional service in the Army National Guard. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence of record in evaluating a claim to disability benefits. Lay 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 v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for sleep apnea Here, VA treatment records document a history of sleep apnea and in June 2021 the Veteran's primary care physician confirmed sleep apnea as a current diagnosis. During the June 2021 Board hearing, the Veteran testified that he started snoring in-service and it caused relationship problems with his former spouse. He testified that he has continued snoring with the same symptoms ever since then. He was diagnosed with sleep apnea in connection with applying for his commercial driver's license and he had not sought out medical care for his snoring before. Consistently, the Board notes that VA treatment records dated August 2011 contain a notation that the Veteran snores and stops breathing per girlfriend/ex-wife; never evaluated, wakes up tired, some daytime sleepiness, fatigue; non-smoker. Additionally, the record contains a September 2018 statement from the Veteran's sister that while the Veteran was in the Marine Corps from 1991 to 1993, he would visit her home and stay overnight. She wrote that there were several occasions she would hear him snoring very loudly and go in and check on him; most times, she would have to wake him up due to not breathing for long periods or even gasping for air. Finally, pursuant to a June 2021 medical opinion from the Veteran's primary care physician (who has been the Veteran's PCP since 1995), the Veteran "easily had a 50% likelihood of having sleep apnea during his military service." The physician noted the events described by the Veteran's sister. The physician's opinion was supported by rationale, to include that the Veteran's symptomatology and chronic complaints of daytime sleepiness and nonrestorative sleep dating back to the early 1990s are major criteria for sleep apnea; the Veteran's hypertension is commonly associated with sleep apnea; and based on the physician's expertise, patients who have been witnessed having an episode of apnea by their spouses or family members have an extremely high likelihood of sleep apnea. Accordingly, the Board finds that the evidence is at least in equipoise and service connection for sleep apnea is granted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, 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.