Citation Nr: 21007593 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-21 554 DATE: February 10, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea is related to service.  CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 2003 to October 2005. This matter initially came before the Board of Veterans Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), denying service connection for sleep apnea. The Veteran filed a Notice of Disagreement in November 2013 and a Statement of the Case was issued in April 2016. The Veteran perfected his appeal in April 2016. In an October 2018 decision, the Board denied service connection for sleep apnea. In July 2019, the Court granted a joint motion for remand filed by the Veteran’s representative and VA’s General Counsel. In July 2020, the Board remanded the claim. A Supplemental Statement of the Case was issued in October 2020, continuing the denial of service connection for sleep apnea, and the case was returned to the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for sleep apnea. The parties to the joint motion agreed that in its October 2018 decision denying service connection for sleep apnea, the Board relied on an inadequate VA medical opinion. Although the joint motion addressed the denial of the Veteran’s claim based on a theory relating to obesity, the Board is granting the claim on a direct theory and therefore consideration of other theories is unnecessary. After a VA sleep study was conducted in 2010, the Veteran was diagnosed with obstructive sleep apnea. He has, thus, met the current disability requirement. The Veteran indicated in his lay statements that he began having sleep disturbances in 2004, during service. Thus, the in-service disease or injury element for service connection has been satisfied. The remaining issue is whether the Veteran’s current diagnosed sleep apnea is related to, or had its onset during, his military service. The Veteran indicated in lay statements and during VA examinations that he continued to have sleep disturbances after service. The Veteran’s statements are competent and credible. Evidence against the claim includes an August 2020 VA examination report, in which the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. The examiner’s rationale was that there were no service treatment records (STRs) which demonstrated complaints or treatment for sleep apnea during service. The opinion is inadequate and of little, if any, probative value, as the examiner did not consider or take into account the Veteran’s lay statements as to his sleep disturbances during service and his continuous problems getting to and staying asleep, since leaving service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).   While the Board could remand the claim for an adequate medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. Given the competent and credible lay statements as to the Veteran’s sleep apnea symptoms in and since service, and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. Moreover, sleep apnea is the type of disability for which lay evidence can support a claim for service connection. Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.