Citation Nr: 21074349 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-45 225 DATE: December 15, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea had its clinical onset during service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are 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 in the Marine Corps from December 1987 to May 1988 and from November 1990 to July 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2019, the Veteran testified before the Board. In December 2019 the Board, in pertinent part, remanded the appeal. Service Connection for Obstructive Sleep Apnea Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Here, the record establishes a current disability, as a January 2009 polysomnogram confirmed a diagnosis of obstructive sleep apnea. Additionally, the record supports an in-service event or injury, as the Veteran has competently reported a head injury that is corroborated by service treatment records, including January 1991 sick call notes documenting head trauma and the Veteran's June 1991 separation examination showing a history of a head injury. Additionally, the Veteran competently testified during his Board hearing that he was told by others during deployment that he snored or stopped breathing. Finally, the Board finds that the record supports a nexus between the Veteran's current sleep apnea and his service. In this regard, in addition to reporting apnea symptoms observed by others in service, the Veteran has competently testified that the onset of his daytime fatigue was in service, and that his combined symptoms have continued and been present since service. For example, during November 2008 VA treatment, the Veteran reported fatigue that began "years ago" with associated signs/symptoms of snoring and not feeling rested in the morning. He further reported that his wife had witnessed apneas, noted by a May 2021 VA examiner to have been observed as early as 1998. Then, in furtherance of initial private treatment for sleep apnea in November 2008, the Veteran reported that he had experienced excessive daytime sleepiness since age 20 (or since approximately 1988), at which time he was young and not overweight. He also denied a history of similar problems in high school or as a child. Of note, on his separation examination, the Veteran denied a history of frequent trouble sleeping and did not otherwise report insomnia at that time, supporting excessive daytime sleepiness unrelated to his service-connected insomnia disorder. The Board acknowledges that July 2014 and May 2021 VA examiners provided negative nexus opinions regarding the relationship between the Veteran's sleep apnea and his service. The July 2014 VA examiner's entire rationale was that the Veteran "had no known sleep disorder." It is unclear whether the examiner meant currently (despite diagnosing sleep apnea) or during service. Regardless, such rationale is insufficient and entirely lacking in any explanation for the conclusion reached. Moreover, the examiner did not address all theories of contention, including sleep apnea related to exposures in Southwest Asia and a head injury in service. With respect to the May 2021 VA opinion, the examiner acknowledged that the Veteran snored in service, that snoring is a risk factor for sleep apnea, and that the Veteran had witnessed apneas as early as 1998. Nevertheless, the examiner stated that BMI was a stronger risk factor for sleep apnea and noted that the Veteran had a normal BMI at separation and a BMI indicative of obesity in 2012. The examiner found that there was not enough information to conclude that the Veteran had obstructive sleep apnea while on active duty, that sleep apnea was not a presumptive condition related to Gulf War illness, and ultimately concluded that it is less likely as not that the Veteran's sleep apnea was incurred in or caused by service. For various reasons, the Board finds the opinion similarly inadequate and lacking in probative value, including the facts that (1) the examiner failed to explain why the Veteran's snoring in service with a normal BMI could not have been signs of sleep apnea, or why his current BMI would be relevant to his symptoms in service; (2) the examiner was not asked to conclude whether the Veteran had sleep apnea in service, but rather to opine whether it was at least as likely as not; (3) the examiner improperly relied upon the absence of a presumption with respect to Southwest Asia service; and, (4) because the examiner failed to account for the lay testimony regarding a continuation of symptoms from service to the present. On the other hand, the Board finds the Veteran's contentions regarding his symptoms in and since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the Veteran's contentions, and a September 2021 statement from the Veteran's private sleep doctor indicating that his head injury in service could not be completely excluded as a contributing factor for sleep apnea, the Board resolves doubt in the Veteran's favor, and finds that service connection for sleep apnea is warranted. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.