Citation Nr: 21008559 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-41 121A DATE: February 17, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current OSA had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to June 1998, including service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision, which denied service connection for OSA. In February 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A hearing transcript has yet to be associated with the record. However, as the instant decision results in a complete grant of the benefit sought, no prejudice inures to the Veteran from proceeding without the hearing transcript. Service connection for OSA 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, 1131; 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). 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. Service treatment records (STRs) include an April 1995 Report of Medical History where the Veteran reported that he did not know if he had frequent trouble sleeping. On his March 1998 Report of Medical History for separation, the Veteran reported that he had frequent trouble sleeping. October 2010 private medical records included reports from the Veteran about sleeping only three to four hours per night and waking up gasping for air. He was concerned about potential OSA. Clinical findings were reported. The physician assessed probable evolving OSA. A November 2010 sleep study confirmed mild OSA. In May 2012, the Veteran reported that he developed sleep apnea during service. It became noticeable during foreign service. He reported that his wife woke him on numerous occasions because of his paused breathing. In May 2012, the Veteran’s wife reported that she had been married to the Veteran for over 30 years. He did not have problems with sleeping or breathing until he returned from foreign service. Afterwards, he developed problems with sleeping and breathing at night. She worried about his breathing problems during sleep and frequently woke him up because of it. In February 2013, the Veteran had a VA sleep apnea examination. The clinician diagnosed OSA with a November 2010 onset. She noted the Veteran’s service history and November 2010 OSA diagnosis. Prior to diagnosis, the Veteran had difficulty sleeping, paused breathing and excessive daytime somnolence. She also noted the above May 2012 statement from the Veteran’s wife. She detailed clinical findings. She furnished a negative medical opinion. She acknowledged the March 1998 report about difficulty sleeping, but indicated the additional evidence suggested that this problem was not present or minor. She cited that the Veteran was obese and this condition was a risk factor. She stated that the progressive weight gain over the past 10 years was the cause of OSA. She reported that OSA was unrelated to service-connected sinusitis. She additionally noted that the Veteran did not complain about snoring, paused breathing, or difficulty starting/ maintaining sleep during service. She then detailed the OSA pathology. In his June 2013 NOD, the Veteran reported that he first developed OSA type symptoms in service and it took many years before it was properly diagnosed. In his December 2014 substantive appeal, the Veteran stated that his OSA symptoms started in service. He reported that he first had trouble sleeping while stationed in Saudi Arabia. For the following reasons, the Board concludes that service connection for OSA is warranted. The disputed issue is whether there is a relationship between service and current OSA. The Veteran is competent to report about sleep disturbances and sleep apnea is the type of disability for which lay evidence can be competent to establish service connection. Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (mem dec); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). He asserts that he first developed sleep disturbance symptoms in service. These symptoms culminated in the OSA diagnosis from the November 2010 sleep study. STRs include at least two medical history reports from the Veteran about sleep difficulties. Then, the Veteran’s wife corroborated his report that his sleep problems started in-service around the time of his deployments. The Board considers these lay reports probative to suggest that sleep disturbances started in service and led to the post service OSA diagnosis. Id. The February 2013 VA medical opinion weighs against the claim. The clinician reported that the main reason the Veteran developed OSA was progressive obesity. However, the Veteran’s reported weight only slightly increased following service. The assessment of significant post-service weight gain appears inconsistent with the weight reports. Then, the clinician diminishes the Veteran’s in-service reports about sleep problems due to an absence of OSA type symptoms reports in other STRs. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Given these problems with the February 2013 VA medical opinion's supporting rationale, its probative value is limited. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). (Continued on the next page)   Overall, the Board finds that the evidence for this claim is in a state of relative equipoise. Buchanan, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). 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 OSA 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 C. D. Simpson, 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.