Citation Nr: A21020643 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200218-71353 DATE: December 29, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The most probative evidence is at least in equipoise concerning whether the Veteran's sleep apnea began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1111, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 2004 to July 2008. This matter comes before the Board of Veteran's Appeals (Board) on appeal of an October 2019 AMA rating decision of a Department of Veteran's Affairs (VA) Regional Office of the Veteran's Benefits Administration, which is the Agency of Original Jurisdiction (AOJ). The rating decision denied entitlement to service connection for sleep apnea. In March 2021, the Veteran elected to appeal to the Board submitting a VA Form 10182 Notice of Disagreement and selecting the hearing docket. Therefore, the Board may consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, and any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In June 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for sleep apnea Service Connection Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus 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). Favorable findings in October 2019 rating decision include: 1. Lay Evidence received on October 24, 2019, from the Veteran's spouse and a fellow service member, with statements of sleeping problems to include "snoring and gasping for air." 2. VA Clinic treatment records dated June 7, 2018, note diagnosis of presumptive sleep apnea. The Board is bound by these favorable findings. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. A diagnosis of sleep apnea has been established pursuant to a sleep study in July 2018. The Veteran is being treated with CPAP. Service treatment dental records dated April 2005 indicate that the Veteran complained of grinding his teeth at night and note objective evidence of wear facets. A soft occlusal guard was prescribed to the Veteran. The dentist noted that the Veteran "may benefit from occlusal splint." The Board notes that occlusal splints are used to prevent teeth grinding and may also be used to treat sleep apnea. The Board further notes that sleep bruxism (teeth grinding) is considered a sleep-related movement disorder. People who clench or grind their teeth during sleep "are more likely to have other sleep disorders, such as snoring and pauses in breathing (sleep apnea)." https://www.mayoclinic.org/diseases-conditions/bruxism/symptoms-causes/syc-20356095 The Veteran submitted a statement in October 2019 that his first three years of service was sea duty onboard the USS Simpson during which he deployed during Operation Enduring Freedom. He indicated that during his sea duty time he began to experience sleep symptoms. He would awaken very tired and groggy and had trouble staying awake. Fellow sailors told him he snored loudly and at times had episodes of "interrupted breathing" when he would "snore, stop and then continue a few seconds later." He described one such incident. He stated this happened a few more times and went to a doctor at the VA. He was given a mouth guard. He had never heard of sleep apnea at that time. He was later diagnosed with sleep apnea. A fellow servicemember and former roommate submitted a statement in October 2019. He stated that he met the Veteran when they were stationed together in 2006 and asked him to move in with him. He stated that every night he could hear the Veteran snoring very loud and coughing. He noticed the Veteran would awaken at least twice a night to use the bathroom. In the afternoon, the Veteran would sleep on the couch and he observed interrupted sleeping associated with respiratory problems. The Veteran's wife submitted a statement in October 2019. She stated that they have been married since 2009 and she noticed that the Veteran started "snoring really loudly and would wake up gasping for air." He told her this had been going on since his first year in active service in 2004 and continued. She indicated that this has caused a strain on their marriage as she had difficulty sleeping. She did not know of the term "sleep apnea" at that point in time. The Veteran would be extremely tired during the day. He told her he would doze off while driving and she also witnessed that occurring. She stated that the Veteran sought help after his doctor told him he could have a heart attack if not treated. The Veteran also testified at a hearing in June 2021 that he started having sleep issues in 2005 during service. He stated that he was exposed to excessive noise from jets and helicopters and that he was required to work excessive long shifts whole aboard ship out at sea. He described environmental exposure due to welding, grinding and insulation removal while living on the ship as it was being prepared for deployment. A friend described his sleeping problems. He testified that he would awaken with a headache and sometimes his teeth hurt. He was told this was due to grinding his teeth and he was prescribed a mouth guard by the dentist. He stated that his symptoms worsened after he was discharged and his sleep habits have been very erratic. His wife later told him that he was "waking up several times during the night gasping for air." He was then evaluated at a VA hospital at which time he was informed that he had sleep apnea and was provided with a CPAP machine. The Board finds the above-noted testimony and statements from the Veteran, a fellow servicemember, and his spouse, to be highly probative, as each party is considered to be competent to report the Veteran's symptoms that were observed during and since service. Layno v. Brown, 6 Vet. App. 465 (1994). In addition, the Board finds the statements to be credible and consistent with service treatment records and the circumstances of his service. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board finds that this evidence establishes the second element required to establish service connection and also supports the existence of a nexus between the Veteran's sleep apnea and active service. In addition, in September 2021, a private medical nexus opinion concerning the etiology of the Veteran's obstructive sleep apnea was submitted. The clinician opined that it is more likely than not that the Veteran's sleep apnea is caused by and/or aggravated by his service-connected tinnitus. The clinician cited studies that associated tinnitus with sleep disturbances and sleep apnea. This opinion only specifically addressed service connection as secondary to the Veteran's service-connected tinnitus. However, a close reading of this opinion and the supporting rationale reflects that the evidence reviewed establishes a nexus between the Veteran's active service and his sleep apnea. The evidence showed that the Veteran reported snoring, dry mouth, headache, daytime hypersomnolence, and fatigue in 2005. The Veteran stated that his shipmates told him what would happen while he slept. The Veteran consulted a physician during service who stated the Veteran was grinding his teeth and ordered a dental consultation in April 2005. The dentist prescribed a mouth guard. The Veteran reported hearing hard, high pitched noises that caused interrupted sleeping, feeling fatigued, irritability, headaches and sexual dysfunction. These symptoms worsened over time. The clinician noted that the Veteran underwent a sleep study in July 2018 and was assessed with obstructive sleep apnea. The nexus element required to establish service connection is therefore met. In sum, the Veteran's service treatment records, his hearing testimony, the lay statements, and the private nexus opinion establish that the Veteran's sleep apnea symptoms began during service, continued and worsened after service, and were ultimately diagnosed as sleep apnea. 38 C.F.R. § 3.303(d); Jandreau v. Nicholson, 492 F.3d 1372 (2007). As all of the elements required to establish service connection are met, service connection for sleep apnea is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.