Citation Nr: 21006401 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-01 727 DATE: February 4, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to restrictive airway disease, is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, it is at least as likely as not, that the Veteran’s OSA was incurred in or otherwise caused by his active military service. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to restrictive airway disease, 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 in the U.S. Army Reserve from March 2003 to June 2003, January 2004 to April 2005, and February 2009 to April 2010, to include service in Kuwait and Iraq in support of Operation Iraqi Freedom. The Board previously remanded the issue for further development in December 2019, September 2015, and December 2014. The Veteran provided testimony at a Board hearing before the undersigned Veteran’s Law Judge in May 2015. A transcript of the hearing is of record. The matter is on appeal before the Board from an April 2011 rating decision. Service connection OSA Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 asserts that he has sleep apnea that is either caused by his active military service, or is secondary to his restrictive airway disease. A review of the Veteran’s partial service treatment records (STRs) does not show any diagnoses for sleep apnea, nor do they reflect any treatments or complaints that may be related to sleep apnea. The Board notes that appropriate development was undertaken to obtain the entirety of the Veteran’s STRs, however, only a portion were able to be retrieved. At a VA general medical examination in February 2011, the Veteran was noted to have sleep apnea symptoms with snoring and fatigue, as well as occasionally falling asleep at stop lights. A diagnosis of severe sleep apnea was reported. At a hearing before the Board in May 2015, the Veteran relayed that he believed he had first been diagnosed with sleep apnea in 2006 or 2007. He explained that he had returned from serving overseas in 2005, and that shortly thereafter his girlfriend at the time noticed he would stop breathing while he was sleeping, which she had not noticed before he had gone over. He relayed undergoing a private sleep study at the time, and that he was prescribed a CPAP as a result of the sleep study. Additionally, the Veteran’s representative commented that the Veteran was service-connected for a respiratory condition, and that he was on medications for other issues such as depression, all of which could cause or aggravate sleep apnea. The Veteran underwent a VA examination in June 2016, which noted a sleep study from March 2011 diagnosing the Veteran with severe OSA. The Veteran reported that he had undergone a private sleep study in 2006, and that he had been prescribed a CPAP after the evaluation. The examiner relayed that there was no medical record submitted documenting a diagnosis of OSA prior to the March 2011 sleep study, and when asked the Veteran reported that the hospital lost the 2006 sleep study results. The examiner found that it was more likely than not that the Veteran’s diagnosis of OSA was incurred during service. The examiner’s rationale noted a report of medical history from December 2003 in which the Veteran denied frequent trouble sleeping, as well as a diagnosis of OSA from a March 2011 sleep study, which was within a year of his discharge in April 2010. Thus, the examiner rationalized that it would seem unlikely that he would develop OSA between the time of the Veteran’s discharge and the time of his diagnosis in March 2011 in the absence of a neurological condition. In an August 2016 addendum medical opinion, the VA examiner noted that the RO had requested an addendum because the June 2016 medical opinion contained contradictory information. The examiner reported that review of the medical opinion failed to show any contradictory information. It stated that the Veteran denied any symptoms of OSA in 2003 during service according to a report of medical history to give evidence of a lack of suspicion of OSA prior to 2003. Then, documentation of a diagnosis of OSA in 2011 was noted, with no likely evidence of OSA developing between the time of separation to the time of diagnosis in 2011. An additional addendum medical opinion was rendered in September 2016. The examiner reported that further review of the Veteran’s STRs does not document any complaints of drowsiness in the daytime, fatigue, or any other symptoms of OSA. The examiner rationalized that based upon this, as well as the fact that the sleep study diagnosed OSA after service, made it less likely than not that the Veteran’s diagnosis of OSA was incurred in or caused by service. Based upon the foregoing, the Board finds that the evidence is at least in equipoise, and that by granting the Veteran the benefit of the doubt, service connection for OSA is warranted. Accordingly, service connection for OSA is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.