Citation Nr: 21005597 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 10-26 503 DATE: February 2, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his currently diagnosed obstructive sleep apnea had its onset during service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been 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 from May 1966 to May 1968. He is the recipient of numerous awards and decorations, to include the Combat Medic Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2008 by a Department of Veterans Affairs (VA) Regional Office. In April 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2017, the Board remanded the issue on appeal for additional development and in July 2019, as relevant, denied service connection for sleep apnea. The Veteran appealed the July 2019 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the July 2019 Board decision and remanded it to the Board. Consistent with the findings in the JMPR, the Board remanded the issue for additional development in October 2020 and it now returns for further appellate review. Entitlement to service connection for obstructive sleep apnea. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). As an initial matter, the Board notes that the Veteran has a current diagnosis of sleep apnea. Specifically, the record reflects that such disorder was diagnosed as early as July 1999. See treatment records from Dr. P.J. (July 1999 sleep study, August 1999), Dr. R.J. (August 1999), Dr. F.J. (November 2005). Further, while the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis referable to sleep apnea, he and his spouse have reported that he experienced symptoms indicative of such disorder, to include snoring, gasping for air, and daytime somnolence, during and since service. Consequently, in light of such reported symptoms, the Veteran was afforded a VA examination in April 2019, at which time the VA examiner reviewed the record, interviewed the Veteran, and conducted an examination. In this regard, he noted the Veteran’s prior diagnosis of sleep apnea and his report that he developed hypersomnolence while in service, which persisted since he left service, and his wife noted increased snoring over the years. However, the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he noted that the Veteran separated from service in 1968 and was diagnosed by sleep study in July 1999, and found that his aging and possible weight gain played a significant role in the development of sleep apnea. However, in the June 2020 JMPR, the parties found that the March 2019 VA examiner’s opinion was inadequate. In this regard, the parties determined that his rationale did not account for the Veteran’s reports of hypersomnolence during and after service as noted earlier in the examination report and he did not clearly explain whether he was referring to in-service or post-service “possible weight gain.” Consequently, consistent with the JMPR, the Board remanded the case in October 2020 in order to obtain an adequate opinion addressing the etiology of the Veteran’s sleep apnea. Thereafter, in November 2020, following an interview with the Veteran, a review of the record, and physical examination, a VA examiner opined that it is at least as likely as not that the Veteran’s sleep apnea was incurred during service. In support of such opinion, he explained that, although there is no medical evidence of obstructive sleep apnea in the Veteran’s service treatment records and a diagnosis was not made until 1999, it is quite likely that he suffered from obstructive sleep apnea well before the diagnosis was confirmed. The VA examiner further noted that, per the Veteran and his spouse, he was suffering from what clearly appeared to be apneic episodes since approximately 1968, which were described as severe snoring with waking up gasping for air multiple times per night. He found it was reasonable to assert that any medical provider, when given this reported history, would have suspected obstructive sleep apnea as the most likely cause. The VA examiner further explained that, while weight gain and age play major roles in the development of obstructive sleep apnea and may very well have contributed to the Veteran’s disease/disease process, there was limited evidence in the medical record to assert an exact pattern of weight gain and a subsequent association to sleep apnea symptoms over time. Thus, the VA examiner concluded that, when weighing all the available evidence to equally include the reports from the Veteran and his spouse and the available medical evidence, it was at least as likely as not that the Veteran’s obstructive sleep apnea was incurred during service. The Board affords great probative weight to the November 2020 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and his spouse and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, as the parties to the JMPR found the March 2019 VA examiner’s opinion to be inadequate, there is no medical opinion to the contrary. Therefore, the Board resolves all doubt in favor of the Veteran and finds his currently diagnosed obstructive sleep apnea had its onset during service. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.