Citation Nr: 21009522 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-32 985 DATE: February 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his OSA is causally related to his active service. CONCLUSION OF LAW The criteria for service connection for a sleep disability, to include OSA, have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR CONCLUSIONS The Veteran had active naval service from June 1990 to September 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The issue currently on appeal was previously before the Board in November 2019, at which time it was remanded for additional development. The case has been returned to the Board for further appellate action. The Veteran has asserted that his sleep apnea had its onset during, or is otherwise related to, his active service. Service treatment records (STRs) reveal that in March 2012, the Veteran reported trouble sleeping or sleeping too much, and sleep disturbances. In June 2012, the Veteran reported that he snored loudly and gasped for air while sleeping. Additionally, on his September 2012 medical history report, the Veteran noted weight gain due to his depression and anxiety; and, on his September 2012 retirement physical, the Veteran noted that he snored. Further, in September 2012, the Veteran also underwent a sleep study that resulted in a diagnosis of an organic sleep disorder. In June 2014, the Veteran reported that he had loud snoring, witnessed apneas, and excessive daytime sleepiness. In July 2014, the Veteran had a sleep study that revealed a diagnosis of moderate OSA. At that time, the Veteran’s physician noted that even modest weight reduction may result in significant improvement or cure in the Veteran’s sleep disordered breathing. In a July 2019 treatment note, the Veteran’s physician was noted as informing him about how weight affects OSA. During the July 2019 Board hearing, the Veteran testified that starting in 2003 he would wake up gasping for air during his deployment, and that he always found himself tired during the day. The Veteran also testified that he drank a lot of caffeine but was still caught falling asleep several times at his job. The Veteran’s wife stated that starting around the end of 2002, she would wake the Veteran up due to his snoring and that he would stop breathing during his sleep. However, the Board notes that the Veteran is competent to report the observable symptomatology of his sleep disability and report a chronicity of symptomatology since his active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Veteran’s statements have been found to be credible. Further, the Veteran’s spouse is competent to report that she has observed the Veteran to have sleep apnea symptoms since he was in active service. Moreover, the Board finds her statements to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). In a November 2019 sleep medicine treatment note, a VA physician assessed that the Veteran’s excessive daytime somnolence was due to multiple factors including partially treated obstructive sleep apnea (OSA), habitual insufficient sleep duration, heavy caffeine use, heavy tobacco usage that fragmented sleep, and poor sleep hygiene. The VA physician also noted that obesity was a major factor of the Veteran’s OSA. Additionally, the Board notes, that lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical conditions; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time support a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as found above, the Veteran spouse are competent to report observable symptoms of sleep apnea, and their reports have been found credible. Th Board notes that there are VA medical opinions of record against the claim. However, those opinions have been found inadequate for adjudication purposes as the examiners failed to adequately consider the evidence of record showing sleep related symptoms since service, and the lay statements regarding the onset and continuity of the Veteran’s symptoms. As such, the opinions will not be discussed further in this decision as they are of little probative value. In sum, the Veteran has a current diagnosis of a sleep disability, to include OSA, and the Veteran, and his wife, have competently and credibly reported his symptoms since his time in service. Therefore, the Board finds that the evidence for ang against the claim is at least in equipoise as to whether the Veteran’s sleep disability was causally related to his active service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a sleep disability, to include OSA, is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.