Citation Nr: 21075294 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-03 945 DATE: December 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's obstructive sleep apnea had onset during a period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from April 1988 to December 1994, April 2006 to September 2007, October 2009 to December 2010, and January 2014 to April 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) regional office. The appeal was remanded for further development in January 2019 and July 2021. The Veteran asserts that his obstructive sleep apnea had onset during his most recent period of active service in 2014. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Upon separation examination in April 2014, the Veteran reported that his roommate told him he frequently stopped breathing while sleeping. April 2014 STR. He was advised to follow up with these complaints at a VA medical center. Id. The Veteran underwent a sleep study in March 2015, which he has stated was the earliest he could get an appointment, and was diagnosed with obstructive sleep apnea. June 2015 CAPRI; July 2015 CAPRI. As a present disability and an in-service event have been shown, the remaining question for resolution is whether the Veteran's obstructive sleep apnea is related to the complaints of breathing trouble in service. Upon review, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's obstructive sleep apnea had onset during a period of active service. The Veteran first underwent VA examination in July 2015. July 2015 C&P Exam. The examiner noted the Veteran's reports regarding his roommate. However, based upon the Veteran's further report that a girlfriend told him once, in late 2013, that he had trouble breathing while sleeping, the examiner opined that obstructive sleep apnea had onset prior to his period of active service beginning in January 2014. As this opinion is conclusory in nature and unsupported by rationale, the Board finds it should be afforded very little rationale. The Veteran next underwent VA examination in December 2019. December 2019 C&P Exam. The Veteran denied having any signs or symptoms of nonrestorative sleep prior to the winter of 2014. He reported that, at that time, he began to experience symptoms including snoring, nocturnal arousals associated with a choking sensation, gasping, snorting, nocturia, morning headaches, excessive daytime fatigue, difficulty concentrating, and not feeling refreshed upon wakening. He also indicated that he had experienced an improvement in symptoms since being prescribed a CPAP for sleep. Ultimately, the examiner opined that it was at least as likely as not that the Veteran's obstructive sleep apnea had onset in or is related to active service. In support of the opinion, the examiner noted that there was no evidence to support that the Veteran experienced signs or symptoms of non-restorative sleep prior to the winter of 2014. Based upon an apparent misunderstanding by the agency of original jurisdiction regarding whether the term "winter of 2014" referred to the beginning or the end of that year, the December 2019 VA opinion was returned to the examiner for an addendum. May 2020 VA 21-2507a Request. The examiner provided an addendum in May 2020, changing his opinion to state that it was less likely than not that the Veteran's obstructive sleep apnea began in or was related to active military service. This change was apparently based upon "documented evidence" that the Veteran was experiencing signs or symptoms of non-restorative sleep prior to his final period of active duty. While the examiner does not describe this "documented evidence," the phrase appears to refer to the reported observation of the Veteran's girlfriend, despite the fact that the examiner noted that statement when providing the December 2019 opinion. While the December 2019 opinion was well-reasoned and provided rationale to support its conclusions, it is somewhat negated by the May 2020 addendum. However, the May 2020 addendum is to be afforded very little probative value as the examiner provided essentially no rationale for the changed opinion. The Veteran again underwent VA examination in August 2021. August 2021 C&P Exam. The examiner opined that it was "impossible" to state that there is a 50 percent or greater probability that obstructive sleep apnea had its onset or was etiologically related to the Veteran's last period of active service because there was no documentation of a significant change in his body habitus during that time, nor any other significant change that would delineate that period as a turning point that marked the onset of obstructive sleep apnea. Again, the Board finds this opinion should not be afforded probative value, as it does not provide sufficient rationale for the opinion stated. In that regard, the examiner does not explain the significance of the Veteran's body habitus with respect to the onset of obstructive sleep apnea. Further, the examiner appears to state that the only evidence of the onset of the condition during service is the statement by the Veteran's roommate, without addressing the Veteran's reported symptoms as noted above. The VA opinions provided are not particularly probative, as they either lack rationale or are inconsistent. Conversely, the statements of the Veteran regarding the onset of his symptoms during service are credible and highly probative. During a December 2013 pre-deployment assessment, he reported that he suffered from no medical condition, such as obstructive sleep apnea, that would require medical equipment like a CPAP. January 2017 STR. As noted above, he reported his roommate's observations upon separation from active service when asked whether he suffered from any injury or illness while on active duty. April 2015 STR. As instructed, he followed up with VA medical personnel regarding his symptoms and was eventually diagnosed with obstructive sleep apnea. July 2015 CAPRI. Further, while he did indicate that his girlfriend noticed his trouble breathing at night on one occasion in late 2013, he also stated that on that particular night he had been drinking and experiencing nightmares. July 2020 Correspondence. He elaborated that this girlfriend happened to work in the medical field, and had never mentioned him having any trouble breathing any other time they co-slept. Id. While the Veteran is not a medical expert and is not competent to diagnose obstructive sleep apnea, he is competent to report his symptoms, including nocturnal arousals, gasping, headaches, and excessive daytime fatigue, and when they had onset. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is also competent to describe symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the Veteran has provided competent and credible statements that his symptoms had onset in service, and those symptoms supported his eventual diagnosis of obstructive sleep apnea by a medical professional, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's obstructive sleep apnea had onset in service. Accordingly, resolving the benefit of the doubt in the (Continued on the next page) Veteran's favor, entitlement to service connection for obstructive sleep apnea is warranted and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.