Citation Nr: 21074304 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-50 826 DATE: December 14, 2021 ORDER The previously denied claim of service for sleep apnea is reopened. Service connection for sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea had its onset during service. CONCLUSION OF LAW The criteria for 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 November1987 to February 2000. The case is on appeal from a June 2018 rating decision. In April 2021, the Veteran testified at a Board hearing. Also, the Veteran's representative submitted additional evidence and waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1305(c), see also Statement in Support of Claim received April 16, 2021. Whether new and material evidence has been received to reopen a previously denied claim of service connection for sleep apnea. By January 2016 rating decision, a claim of service connection for sleep apnea was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in April 2018. No new evidence or notice of disagreement was received by VA within one year of the issuance of the January 2016 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for sleep apnea is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also A.C. April 2021 medical opinion; April 2021 Board hearing testimony.] Service connection for sleep apnea. Legal Criteria 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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran contends that he experienced the onset of sleep apnea during service, or alternatively, that his sleep apnea disability is caused by or aggravated by his service-connected sinusitis disorder. In an April 2018 correspondence the Veteran reported experiencing a long standing history of sleep apnea, fatigue, and headaches and prescribed Continuous Positive Airway Pressure (CPAP) all which the Veteran reported had made "work difficult." He also submitted a private medical opinion finding that the Veteran's sleep apnea "was caused by his lumbar spine injury that occurred in the service." In a July 2018 notice of disagreement (NOD) the Veteran contended that the examiner did not completely eliminate the possibility that the lower back disorder can cause sleep apnea. Also, the Veteran contended that the examiner did not obtain the Veteran's weight to determine that obesity contributed to sleep apnea. Thus, the Veteran contended that the May 2018 VA examination was inadequate. Furthermore, the Veteran attached articles that show chronic pain related to back injuries can cause sleep disorders. At the April 2021 Board hearing, the Veteran's representative reported that the Veteran's sleep apnea was undiagnosed during service until around 2004 and 2005, or at least it is cause by the Veteran's service-connected sinusitis. The Veteran reported experiencing lack of concentration, tiredness, headaches, and falling asleep since service and after service. He also reported that his sleep apnea interfered with work to the extent that he received a reprimand. The representative submitted a private medical opinion, finding a positive nexus between the Veteran's sleep apnea and service. The Veteran's service personnel records (SPRs) show that he was satellite ground station repairer and assigned to Saudi Arabia from May 1991 to November 1991. The Veteran's service treatment records (STRs) include reports of frequent trouble sleeping in July 1994 and in March 1999. The Veteran's post-service VA treatment records show that he was diagnosed with severe sleep apnea during a September 2004 sleep study. They also show that the Veteran uses a CPAP for the diagnosed sleep apnea. His post-service private treatment records show that he underwent a sleep study in September 2004 and March 2010. The Veteran was diagnosed with severe obstructive apnea on both studies and advised to use CPAP. The Veteran was afforded a VA examination in regard to this claim in January 2016. The examiner reviewed the claims file. The examiner found that the Veteran's sleep apnea is less likely than not related to service. The examiner stated that the Veteran's STRs included one entry mentioning sleeping problems in the Veteran's annual physical screening examination dated July 1994 where he marked "yes" to a question of frequent trouble sleeping and noted that "I have had more trouble sleeping since Desert Storm 1991. I don't seem to have bad dreams that I can remember, more not restful." The examiner remarked that the Veteran did not described any additional symptom beyond trouble sleeping and unrestful sleep. Thus, the examiner found that the Veteran's sleep trouble complaint in the July 1994 examination was insufficient to support evidence of obstructive sleep apnea. Also, the examiner found that the Veteran was not diagnosed with sleep apnea until 10 years after discharge. The Veteran was afforded another VA examination in regard to this claim in May 2018. The physician reviewed the claims file. The physician opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of the Veteran' service connected condition. The physician reported a sleep apnea confirmed diagnosis from 2005. Also, the physician reported sleep apnea symptoms to include persistent daytime hypersomnolence and a 2016 sleep study conducted by a pulmonologist. The physician found that "there is no known medical correlation between the development of obstructive sleep apnea as the result of a back disability. Any alteration in the Veteran's sleeping brought on by his back disability would not cause sleep apnea. Increased weight or obesity and increase neck circumference are more likely contributors to the development of sleep apnea than any back disability." At the April 2021 Board hearing, the Veteran's representative submitted an opinion from a private examiner, A.C. RN. The examiner reviewed the Veteran's STRs and post-service treatment records. The examiner found, based on her review of the relevant records and knowledge of scientific research and clinical literature relevant to Veteran's case, that it is more likely than not that the sleep apnea had its onset during service. The examiner explained that the Veteran experienced sleep apnea symptoms during service. The examiner also explained that sleep apnea develops slowly over many years and that it is not unusual to have symptoms for years prior to seeking evaluation. The examiner reported that a lay statement, the Veteran's spouse, indicated that Veteran would "stop breathing during sleep" at which time he would be waken up and informed that his snoring is loud. The Board finds that the evidence is at least in equipoise as to whether the Veteran's sleep apnea had its onset during service. The Veteran submitted competent and credible lay evidence indicating that he experienced in-service sleep apnea symptoms. In addition, a private examiner after a thorough review of the Veteran's accurate medical history explained why the examiner found that it is more likely than not that his sleep apnea had its onset during service. While the VA examiners in January 2016 and May 2018 reached a different conclusion, the private examiner considered the facts of the Veteran's specific case, cited to medical literature, and provided explanations for their conclusions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is a question of how medical experts can arrive at opposing outcomes on an issue such as the one in this case. However, the Veteran's burden of proof is one of equipoise and not certainty. Thus, when reasonable doubt is resolved in the Veteran's favor, the Board finds that his sleep apnea had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for sleep apnea is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.