Citation Nr: 21009088 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-60 943 DATE: February 18, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence supports a finding that the Veteran has sleep apnea that is directly related to active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been satisfied. 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 from September 1997 to March 2013. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in October 2019. This issue was previously remanded by the Board in February 2020 and has since been returned for further adjudication. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he was diagnosed with sleep apnea during service and has suffered from sleep apnea since service. With the exception of his July 1997 entrance examination, the Veteran’s STRs dated prior to 2006 are missing through no fault of his own. The record reflects that searches have been conducted to locate the Veteran’s STRs through appropriate sources, and the Veteran himself indicated he also searched for them, to include by going to the Clinic where, he asserts, he was diagnosed with sleep apnea during service. Where STRs are missing, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While the absence of STRs requires that the Board explain its findings and conclusions and to consider carefully the benefit of the doubt rule, it does not mean that there is a lower legal standard for establishing entitlement to service connection. O'Hare, 1 Vet. App. At 367. Service treatment records that are available are silent for any diagnosis of sleep apnea, however they do note sleep problems and insomnia. The Veteran submitted two lay statements from fellow servicemen who served with him between 1998 and 2000. Both individuals observed the Veteran using a device to aid in his sleep and the Veteran informed both that he suffered from sleep apnea. One of the individuals reported that the Veteran suffered from loud snoring before being diagnosed with sleep apnea and being given a sleep apnea machine. Post-service treatment records demonstrate that the Veteran was diagnosed with sleep apnea after seeking treatment in January 2014, less than one year after his separation from service. During the Veteran’s October 2019 VA hearing, he and a fellow serviceman testified to his sleep apnea in service, including the Veteran stating he did a sleep study in service and the fellow serviceman stating that the Veteran had a machine that fit over his face that helped him breath in service. The Board notes that the Veteran consistently and credibly complained of sleep-related symptoms beginning during active duty. The Veteran stated in various submissions to VA and at the Board hearing that he had experienced sleep disturbances. The Veteran and fellow servicemen are competent to describe the Veteran’s snoring, use of a device while sleeping, and apnea symptoms because these observations come to them through their senses and require only personal knowledge rather than medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the Veteran’s and fellow servicemen’s statements to be credible. In this case, the Board finds that the evidence is at least in equipoise, and the lay testimony provides sufficient support for the present claim. The credible testimony indicates the Veteran was treated for sleep symptoms during service, and while some service records may be missing, his sleep apnea diagnosis was confirmed shortly after his separation from service. Indeed, the claimed symptoms and history were relayed to the physician during the January 2014 VA sleep evaluation which eventually resulted in a diagnosis of sleep apnea. The Board finds that lay testimony to be credible. There is no medical opinion of record that refutes that lay testimony that the Veteran began experiencing symptoms in service that were later diagnosed as sleep apnea following service. (Continued on the next page) Accordingly, in light of the medical treatment records which document sleep apnea, and the Veteran’s and servicemen’s lay statements, the Board resolves reasonable doubt in favor of the Veteran and finds that service connection for sleep apnea is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, 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.