Citation Nr: 21007994 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-14 260 DATE: February 11, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The Veteran’s sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1981 to July 1985 and March 1986 to February 2003. The Veteran and two fellow servicemen presented sworn testimony at a hearing before the undersigned Veterans Law Judge in February 2021. 1. Service connection for sleep apnea. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran contends that his diagnosed sleep apnea is related to service as his symptoms began while on active duty. In support, he also notes that he has s submitted a positive nexus opinion linking his obstructive sleep apnea to service. Alternatively, the Veteran contends that his sleep apnea is secondary to his service-connected rhinitis. See Hearing Testimony, February 2021. Post service treatment records show a diagnosis of sleep apnea in February 2010 and the Veteran was prescribed a CPAP machine for management of his condition. See Medical Treatment Record, May 2013. Further, numerous lay statements submitted by the Veteran’s wife and fellow servicemen corroborate the Veteran’s testimony. The statement from the Veteran’s wife noted that the Veteran has had symptoms of loud snoring, difficulty breathing during sleep, and abnormal daytime sleepiness since she met him in 1998. Statements from fellow servicemen noted that they witnessed the Veteran exhibiting symptoms of loud snoring, falling asleep during inappropriate times, and intermittent wakefulness at night. See Lay Statements, April 2017 and February 2018; see also Hearing Testimony, February 2021 (fellow servicemen testifying to the Veteran’s sleep apnea symptoms during and since service). Further, in April 2017, a private examiner reviewed the Veteran’s medical records and opined that the Veteran’s diagnosed sleep apnea more likely than not originated on active duty. The examiner reasoned that the Veteran did not have sleep complaints and did not snore prior to entering service, but during his active years, the Veteran reported that he was told by others that he snored disruptively during sleep and he was observed to stop breathing during sleep. Here, in light of the competent and credible lay evidence of the Veteran and of several first-hand witnesses, the Board finds that the disease process of the Veteran’s obstructive sleep apnea became manifest while he was on active duty. Further, the evidence shows that he has been diagnosed as having this disability. As such, although a July 2016 VA examiner has provided a negative nexus opinion regarding the etiology of the Veteran’s sleep apnea, the Board concludes that the evidence shows that the disability became manifest while the Veteran was on active duty and thus was incurred in service. 38 C.F.R. § 3.303(a); see Flynn v. Brown, 6 Vet. App. 500, 503 (1994). As the Board has granted direct service connection in this matter, it need not address other theories of service connection, such as secondary service connection. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.