Citation Nr: 21077052 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-24 759 DATE: December 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's obstructive sleep apnea began during active duty service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1998 to September 2002, and in the U.S. Army from September 2002 to April 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a December 2021 hearing held before the undersigned via videoconference. The Veteran's wife was present at the hearing but did not testify. This decision is being rendered prior to the production of a transcript of that hearing; as the decision below is fully favorable, the Veteran is not prejudiced. A transcript will be associated with the claims file at a later date. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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, 1167 (Fed. Cir. 2004). The Veteran contends that he is entitled to service connection for obstructive sleep apnea. At the December 2021 Board hearing, the Veteran testified that he first noticed symptoms around 2004, which was after his first deployment and during his second period of active duty. He further stated that his friends complained of his snoring. The Veteran also testified that he experienced tiredness, and has fallen asleep in chairs and the shower. He testified that his CPAP machine causes him difficulty with sleep. Upon review of the Veteran's service treatment records, the Board notes that the Veteran endorsed still feeling tired after sleeping both during and after his deployment in a post-deployment health assessment dated December 2005. Post-service treatment records reflect a current diagnosis of obstructive sleep apnea. The record also contains a series of lay statements submitted by the Veteran's mother, wife, fellow servicemembers, and commanding officer on behalf of the Veteran. The Veteran's fellow servicemembers and commanding officer collectively reported that they noticed the Veteran displayed heavy snoring, little to no breaths for periods of time, gurgling, coughing, and gasping while sleeping, and restless sleep. The Veteran's mother and wife similarly stated that following his discharge from active service, the Veteran snored loudly, and choked and gasped as he slept. They further noted mood swings and behavioral changes due to the Veteran's sleep deprivation caused by his obstructive sleep apnea. These same symptoms prompted his formal assessment and diagnosis of sleep apnea; they are specifically related to the current disability. To the extent that a June 2017 VA examiner rendered a negative nexus opinion, such an opinion is not probative, as the examiner only provided an opinion as to whether the Veteran's obstructive sleep apnea was caused by his service-connected PTSD. Therefore, the record reflects competent and credible evidence of an onset of a sleep disorder in service, associated symptoms since that time, and a current diagnosis of obstructive sleep apnea. The preponderance of the evidence is in favor of the Veteran's claim. Service connection must be granted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.