Citation Nr: 21009751 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-24 969A DATE: February 23, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran has a current diagnosis of sleep apnea which began during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2019, he testified before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea. He asserts this disability first manifested during active duty service, and service connection is therefore warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Considering first the service treatment records, these are negative for any diagnosis of or treatment for sleep apnea. On an August 2009 periodic examination, the Veteran denied any difficulty sleeping. A May 2012 sleep evaluation included findings of nocturnal snoring, subjective daytime sleepiness, and a history of apneas. He was also noted to have a neck circumference greater than 17 inches. The final impression was that the Veteran “had symptoms and risk factors for sleep apnea syndrome.” In June 2012, however, this examiner changed the Veteran’s diagnosis to that of mild upper airway resistance syndrome. Use of a CPAP machine was recommended. On VA examination in July 2013, the Veteran was diagnosed with sleep apnea; however, after review of the record, the VA examiner opined that it was less likely than not this disability was related to service, as she could find no evidence in the service treatment records of a diagnosis of or treatment for sleep apnea or any sleep-related disability. At his September 2019 hearing, the Veteran stated he first began to experience difficulty breathing while asleep and daytime somnolence while on active duty. He testified that beginning in the 1990s, his wife informed him that he snored loudly in his sleep. In October 2019, the Veteran submitted a statement from his wife, a respiratory therapist. She stated that in 1996, she began noticing him experiencing such symptoms as irregular breathing and frequent movement in his sleep. She encouraged him to get a sleep study done at that time. After considering the totality of the record, the Board finds that, after affording the Veteran the benefit of the doubt, service connection for sleep apnea is warranted. While his service treatment records are negative for any diagnosis of such a disability, he and his wife, a respiratory therapist, have both reported that he experienced snoring and difficulty breathing for many years during service. Additionally, he was diagnosed with sleep apnea within a few years of service. The Board finds the Veteran’s assertions, as well as those of his wife, to be both competent and credible, as such symptomatology as irregular breathing and snoring are observable by laypersons as well as medical professionals. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As he has reported the continuity of such symptoms since service, the Board finds that the sleep apnea diagnosed shortly after service likely had its onset therein, and service connection for sleep apnea is therefore warranted. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.