Citation Nr: 21075504 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-51 952 DATE: December 20, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, the evidence is in equipoise as to whether the Veteran's sleep apnea had its onset during active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.159 (a)(2), 3.303 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to September 1984 and August 1989 to October 1997. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2016 rating decision of the Department of Veterans' Affairs (VA) regional office (RO). The Board previously remanded the instant matter for additional development in February 2020. Entitlement to service connection for sleep apnea Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The Veteran contends his sleep apnea manifested during his active service. The Veteran was diagnosed with sleep apnea via a private sleep study in October 2015. The diagnosis has remained consistent throughout the Veteran's medical records and he continues to carry a diagnosis of sleep apnea, which was most recently confirmed via a VA examination in April 2020. Thus, the first element of a current disability has been satisfied. Next, the Board turns to the in-service incurrence of disease or injury. The Veteran's service treatment records (STRs) show evidence of the Veteran complaining of constant fatigue, frequent trouble sleeping, and other issues sleeping. The Veteran has also consistently stated he had trouble sleeping, including snoring, while in service. The Veteran's brother submitted a statement stating he went to visit his brother for a week in March 1993 (during active duty service). During that time the brother witnessed the Veteran snoring loudly and that on several occasions he had to wake up him because he had stopped breathing. The brother also stated the Veteran told him he was not resting well at night and was constantly tired. The Veteran's wife also submitted a statement. She stated she has been sleeping besides her husband since 1999 (during active duty service) and in that time she has witnessed him snoring and stop breathing nearly every night. 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 layperson. 38 C.F.R. § 3.159(a)(2). The Veteran's brother and wife are competent to report what they witnessed, and the Veteran is competent to report his observable symptoms. The Board finds the Veteran's brother and wife's very specific accounts credible and probative. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds no reason to doubt the credibility of the Veteran's or his brother's or wife's reports. As such, the second element of an in-service incurrence or aggravation of a disease or injury is satisfied. Finally, the Board must address whether a nexus exists between the Veteran's current disability and his in-service symptoms. Since the Veteran's honorable discharge, the Veteran has made consistent complaints of his sleep issues. The Veteran has undergone multiple sleep studies where he has been prescribed a CPAP machine. There are also consistent complaints of sleep issues throughout the record. The previously addressed lay statement by the Veteran's wife discussed his ongoing, almost nightly, sleep issues, which include him stop breathing. Since his initial complaint, he has credibly and competently made statements regarding his sleep disorder, up to present day. While the Veteran cannot witness his own sleep apnea, his wife and brother competently and credibly described symptoms that later resulted in a diagnosis of sleep apnea by a medical professional. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. The record contains three VA examinations for sleep apnea. The July 2017 VA examiner's negative nexus opinion was based solely on the long period of time that elapsed between the Veteran's active duty service and his formal diagnosis of sleep apnea by polysomnogram. The lay evidence from the Veteran's brother and wife and a private disability benefits questionnaire (DBQ) were submitted in September 2017 (no nexus opinion was provided by the private DBQ). An August 2018 VA examiner explicitly addressed the lay statements from the Veteran's brother and wife, as well as the Veteran, and opined: The standard for diagnosing OSA is polysomnography, and numerous conditions may mimic features of OSA but are not diagnostic clinically without an objective sleep study. This Veteran was diagnosed two decades (19 years) after separation from service and is very unlikely to have been attributed to his complaints during service without the benefit of a formal sleep study. New lay evidence was provided in November 2018. A third VA examination was provided in April 2020 to consider this lay evidence. The examiner conducted a very thorough review of the record, including explicit discussion of detailed lay evidence. They opined it is less likely than not that sleep apnea incurred due to or the result of the Veteran's service and supported it with a strong rationale based not only on the absence of objective evidence of apnea until 2015, but also stated that the sleep apnea diagnosed in 2015 was only "mild, not moderate or severe sleep apnea. Sleep apnea should have gotten worse over the years and according to the history and medical records he has gained weight which is the main cause of sleep apnea." In March 2019, private sleep specialist Dr. JG examined and interviewed the Veteran and reviewed his most recent sleep study and discharge physical. Dr. JG stated that the symptoms of tachycardia, insomnia, fatigue, syncope, and anxiety documented in the discharge physical are "suggestive that sleep apnea was probably present at the time of his service based upon symptoms listed." He explained that based on the separation physical showing "common symptoms related to untreated OSA, and complaints by the patient of fatigue, shortness of breath, palpitations, frequent trouble sleeping, loss of memory, and depression." Dr. JG concluded, "it is my opinion that obstructive sleep apnea was probably present at that time" [when the 1997 discharge physical was completed]. The Board finds that the opinion of Dr. JG is probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the opinions of the VA examiners, read together, are adequate and probative, as they explicitly address all the lay evidence and provide a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl; Nieves-Rodriguez. The Board finds that the evidence for and against the claim is in equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's sleep apnea grants service connection for sleep apnea. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.