Citation Nr: 21008135 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 94-44 967 DATE: February 11, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his currently diagnosed sleep apnea had its onset during his military service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1983 to July 1992. This case comes to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the case for additional development and it now returns for appellate review. The Board notes that additional evidence has been associated to the record without a waiver; however, the Board herein grants the Veteran’s claim. Therefore, there is no prejudice in proceeding with a decision at this time. Entitlement to service connection for 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. § 1131; 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) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran contends that his current sleep apnea had its onset during his military service. In his January 2013 notice of disagreement, the Veteran reported that the sleep symptoms he had been experiencing that led him to finally seek treatment and a diagnosis of sleep apnea had been present for many years, including during his time in service. As an initial matter, the Veteran has a current diagnosis of obstructive sleep apnea. See June 2014 VA examination report. The Veteran’s service treatment records are absent any findings of treatment or diagnosis of sleep apnea. However, a February 2001 private treatment record indicates that the Veteran presented for an evaluation of a possible sleep disorder, reporting progressive difficulties over the previous five years, including profound disruptive snoring and daytime sleepiness. The report notes that the Veteran’s symptoms appear to have coincided with weight gain over the past eight to nine years. In a January 2013 statement the Veteran’s former spouse reported that she was married to the Veteran from 1988 to 2007. During that period, she noticed he had a serious problem with snoring and episodes when he seemed to be choking or gasping for air while he slept. She also stated that the Veteran seemed tired and would fall asleep during the day. In a January 2013 statement a fellow servicemember reported that he roomed with the Veteran at various locations during his time in service and noticed that the Veteran snored very loudly, and his breathing was peculiar at times when he slept. He also would doze off during the day. Additionally, in August 2020, the Veteran submitted buddy statements from former coworkers. In this regard, his former coworkers indicated that they met the Veteran in August 1993 during police academy training and he had problems staying awake during class. Consequently, the only remaining inquiry is whether the Veteran’s sleep apnea is related to her military service. In June 2014, VA obtained an etiology opinion related to the Veteran’s claim. At such time, the examiner opined that it was less likely than not that the Veteran’s reported symptoms in service are related to his current sleep apnea. As rationale, the examiner explained that the Veteran’s sleep apnea began many years after service, the Veteran’s service treatment records contained no documentation related to sleep complaints, and snoring is a very common occurrence and does not necessarily indicate pathology. Although the examiner indicated a review of the Veteran’s file, the examiner only partially addressed the lay statements in evidence. Therefore, the examiner’s opinion is afforded no probative weight. In a September 2019 VA opinion, the examiner concluded that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner explained that there was no medical evidence that the Veteran had a diagnosis sleep apnea that was incurred in or caused by the sleep apnea during service. The examiner noted that the Veteran was seen in February 2001 with complaints of fatigue and snoring, and he was diagnosed with mild obstructive sleep apnea in March 2001. The examiner further stated that the Veteran’s service treatment records and available medical records were reviewed, including the buddy statements from the Veteran’s former spouse and fellow servicemember. However, the examiner noted that the Veteran had increased weight gain since his separation from service in March 1992, with a weight of 231 pounds to 277 pounds in February 2001 when first complained to his private provider about possible sleep apnea. The examiner explained that witnessed snoring, difficulty sleeping, or daytime sleepiness witnessed by others may be multifactorial was not necessarily indicative of sleep apnea. In this regard the examiner stated that obstructive sleep apnea was characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. Therefore, the examiner concluded that the mostly likely etiology of the Veteran’s sleep apnea was obesity as well as risk factors of male gender and age. In October 2020, the Veteran submitted a private opinion from L.B., MPAS, PA-C. At such time, she concluded that it was at least as likely as not that the Veteran’s sleep apnea was related to his military service. As rationale, she explained that the Veteran suffered from loud snoring, sleep disturbances, and excessive daytime fatigue around 1986 while in service, which was reinforced by eyewitness statements in support of the Veteran’s claim. In this regard, she referenced buddy statements from the Veteran’s former spouse and a former servicemember. She further explained that, after the Veteran’s separation from service, he began to experience more severe symptoms related to his undiagnosed sleep apnea, which prompted him to seek a medical consultation and he was diagnosed with sleep apnea in 2001. Therefore, L.B., MPAS, PA-C concluded that the diagnostic criteria, as outlined by the American Academy of Sleep Medicine, combined with the Veteran’s buddy statements and personal history, suggested that he was suffering from undiagnosed sleep apnea while in service. She further concluded that the Veteran’s condition worsened overtime, which was consistent with the natural progression and development of sleep apnea. Based on the foregoing, the Board finds that evidence is in relative equipoise as to whether the Veteran’s sleep apnea is related to service as both the September 2019 VA opinion and the October 2020 private opinion reflects consideration of all relevant facts and the examiners provided a sufficient rationale for the conclusion reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).   Therefore, the Board will resolve all doubt in the Veteran’s favor and find that his sleep apnea, had its onset during his military service. Consequently, service connection for such disorder is warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.