Citation Nr: 21077394 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 11-00 090 DATE: December 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's OSA had its onset during service. CONCLUSION OF LAW The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1978 to July 1979 and February 2003 to June 2003, to include subsequent service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision from the San Juan, Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2018 and November 2020 and was remanded for additional development. Entitlement to service connection for OSA. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 decision). The Veteran seeks service connection for OSA, contending that such began during active service and has been recurrent since discharge. See Appellate Brief, September 2020. Post-service medical records indicate an initial diagnosis of severe OSA by a sleep study performed in November 2003. See December 2003, VA treatment record. The Veteran's wife consistently complained of the Veteran's loud snoring and the Veteran complained of daytime somnolence. VA treatment records dated October 2004, September 2007, April 2009, and December 2009. A lay statement from M.F. a fellow reservist, stated he bunked with the Veteran during drill from approximately 2009 to 2012 and he personally observed the Veteran's loud snoring, difficulty breathing while asleep, and daytime fatigue; the Veteran would also fall asleep during the quiet moments of the day which negatively impacted his work productivity. See VA Forms 21-4138 dated October 2014 and May 2015. In light of the above evidence, the Board finds that the Veteran's OSA became manifest while the Veteran was on active duty. The Board finds the lay statements of record indicating that sleep problems began during active service and have been recurrent since discharge, to be competent, credible, and highly probative. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, medical evidence demonstrates that severe OSA was initially diagnosed within one year of the Veteran's discharge from active service. See December 2003, VA treatment record (diagnosing severe OSA by a sleep study performed in November 2003). The Board acknowledges the August 2018 and October 2021 VA examiners' negative nexus opinions but finds they are inadequate as they were based, in part, on the inaccurate factual premise that OSA was initially diagnosed in 2009, rather than November 2003. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (indicating a medical opinion based on an incorrect factual premise is not probative). Resolving all reasonable doubt in the Veteran's favor, service connection for OSA is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Straughn, Shavonne 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.