Citation Nr: 21073588 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 19-00 453A DATE: December 9, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran's obstructive sleep apnea began during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force (USAF) from September 1980 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision issued in December 2017 by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends he is due entitlement to service connection for obstructive sleep apnea. Specifically, the Veteran claims that his night terrors, sleepwalking disorder, snoring, and other sleep disturbances in service were due to undiagnosed sleep apnea. He testified in the Board hearing that the first medical recognition of sleep apnea did not occur until 1993, 11 years after his service. The Veteran also submitted medical literature into the claims file to support this fact. Because of this, he was unable to be diagnosed with sleep apnea in service. However, he states he suffered from symptoms of sleep apnea in service and had undiagnosed sleep apnea during service, which ultimately led to his sleep disturbances, which are service connected (characterized as insomnia disorder). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107; 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 of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In May 1982, the Veteran's service treatment records (STRs) contain a note stating that the Veteran has been suffering from sleepwalking recently. In July 1982, the STRs show a report that the Veteran has been sleepwalking and making threatening comments in his sleep for the past six to nine months. In October 1982, the Veteran was evaluated by the USAF Physical Evaluation Board (PEB) which found both a sleepwalking disorder and a sleep terror disorder. The PEB found these conditions to render the Veteran physically unable to reasonably fulfill the purpose of his assignment on active duty. The Veteran was subsequently discharged with severance pay, per the PEB recommendation. In July 2017 the Veteran was seen by a private provider, Dr. D.F. The provider found a diagnosis of obstructive sleep apnea and a night terror disorder. Dr. D.F. cited a sleep study done in 1982 which revealed the Veteran experiencing 10 awakenings every night while in the sleep lab, and determined this to be consistent with a diagnosis of sleep apnea. After the examination, Dr. D.F. opined it was more likely than not that the Veteran's diagnosed sleep apnea was the underlying cause of his night terror disorder experienced while on active duty. The private provider specifically stated that he reviewed the medical literature in the claims file and agreed with the evidence from the Mayo Clinic, American Sleep Association, and Advanced Dental and Sleep Center that linked obstructive sleep apnea as a major cause of night terror disorders. Dr. D.F. also reported that he reviewed and concurred with a study provided by the National Library of Medicine that concluded the identifiable sources of arousal by sleep apnea can trigger parasomnias (i.e., sleepwalking, sleeptalking, and night terrors). The Veteran submitted a buddy statement in August 2017 from a fellow servicemember who roomed with the Veteran while in service. Mr. T.D. reported that the claimant's sleep patterns were interrupted with him suddenly waking up and screaming. Mr. T.D. also reported that the claimant would sleepwalk and sleep talk on a nightly basis. Finally, the fellow servicemember reported that the Veteran would awake suddenly gasping for air as if he were unable to breathe. The buddy statement identified this as a routine occurrence. The evidence of record contains a medical report from the Veteran's time in service, received by the VA in October 2017, dated September 1982. This medical record was produced by Dr. S.A.W. at Carswell Air Force Base in Texas, where the Veteran had been stationed. The medical report noted that the Veteran had undergone a sleep study "recently" by Dr. W in San Antonio where he was found to have a classic disturbance of sleep associated with night terrors and sleep walking with otherwise fitful sleep. The report also stated that the sleep study showed the Veteran averaging 10 awakenings every night while in the sleep lab. Dr. S.A.W. diagnosed the Veteran with a sleepwalking disorder and sleep terror disorder, noting that they were service aggravated. The USAF doctor also recommended that the Veteran should be evaluated by a USAF PEB for probable discharge from service for his condition. In September 2018, the Veteran underwent a private examination, performed by physician assistant (PA) B.S. The private provider stated that all records in the claims file were reviewed before providing an opinion. PA B.S. noted that the findings of the sleep study that the Veteran had in September 1982 reported a "clear association of night terrors and sleep walking disturbance with periods of increased stress." It was noted in this examination that the Veteran was prescribed medication for the treatment of his sleep condition during service. It was also reported by PA B.S. that the Veteran continued to have difficulties with night terrors and sleep disturbances following his separation from service and that he was found to have sleep apnea in approximately 1993 at the age of 31. PA B.S. stated that it is at least as likely as not that the Veteran's sleep apnea condition is secondary to an aggravated disability, shown by the Veteran's worsening of night terrors during military service, and that the Veteran's sleep apnea at least as likely as not was first manifested during his military service. It was noted that while night terrors were found to pre-exist service, there were no findings to indicate sleep apnea was present prior to service. PA B.S. stated that medical documents clearly indicate a worsening of the Veteran's night terror condition during his military service. This examination also noted that the Veteran's sleep specialist stated that the Veteran's sleep study results meet the diagnostic criteria for obstructive sleep apnea. PA B.S. finally reports that the Veteran's clinical history and timeline indicates that the aggravation of the sleep terrors during military service have continued following service. The obstructive sleep apnea condition is therefore secondary to and aggravated by the Veteran's sleep terror condition. The report of sleeping difficulty and sleep study results from service indicate a sleep apnea condition which manifested itself during military service. VA asked a VA examiner to review the Veteran's file and offer a medical opinion and rationale on the Veteran's claim of service connection of sleep apnea. The November 2018 examiner opined that the Veteran's sleep apnea was less likely than not related to his sleepwalking disorder noted during service. The examiner offered a rationale stating that in the review of the evidence based medical literature submitted into the record, there is no support to show obstructive sleep apnea is caused by or due to a sleepwalking disorder or sleep terror disorder. The examiner states that an individual can have both conditions exclusively and association does not indicate causality. In August 2021, the Veteran received a Board hearing before the undersigned VLJ. The Veteran stated that while he was on active duty, he had night terrors and episodes of getting up and moving around while asleep. He reported his sleep issues to his superiors which ended up in his discharge from service. The Veteran claimed that he was told to find clinical evidence to support his claim that he had sleep apnea in service, however, it was not until 1993 that clinical evidence could be provided due to the Wisconsin Sleep Cohort Study that was published. The Veteran also testified that VA in 1995 had an article from the American Sleep Association that found night terrors to be secondary to sleep apnea. In the hearing the Veteran also testified that he believes he had undiagnosed sleep apnea in service which was causing his night terrors. He also reported that he had positive opinions from private providers supporting the belief that he had apnea which led to night terrors. In August 2021 the Veteran provided more medical literature. An article from the peer-reviewed medical journal Nature and Science of Sleep was submitted in which the authors discuss the importance of the Wisconsin Sleep Cohort Study in showing the prevalence of obstructive sleep apnea. After a full and thorough review of the evidence, the Board finds that all elements of service connection for obstructive sleep apnea have been met, and the claim is granted. The first element of direct service connection is showing that the Veteran has a present disability. Medical records clearly show the Veteran to have obstructive sleep apnea and show that he uses a CPAP machine to treat the sleep apnea. Therefore, the first element is satisfied. Second, the evidence must show an in-service incurrence of a disease or disability. The Veteran's private providers both offer opinions stating that the Veteran's sleep apnea first manifested in service. Additionally, the Veteran's roommate offered a lay statement reporting that he frequently stopped breathing and awoke from choking and gasping for air. While this lay statement is not competent to establish a medical diagnosis, lay statements are deemed competent to testify to identifiable symptoms. 38 C.F.R. § 3.159(a)(2). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, 1377 (Fed. Cir. 2007). Here, the Veteran's roommate from service described symptoms (choking, gasping for air during sleep), that are clear and identifiable symptoms of sleep apnea, which is diagnosed in the record by competent medical professionals. Therefore, based upon the lay statement and medical opinions, the second element of direct service connection is satisfied. Finally, the third element needed for direct service connection is a showing that a causal relationship exists between the present disability and the disease or injury incurred or aggravated during service. Here, the private opinions of record offer competent and credible opinions explaining that the Veteran's present disability of sleep apnea is the same disability that was first manifested during service. Therefore, all elements of service connection have been met, and entitlement to service connection is warranted. The 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the evidence supports the Veteran's claim. The Veteran is granted service connection for his obstructive sleep apnea. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.