Citation Nr: 21010105 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-24 711 DATE: February 24, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea manifested during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has verified active duty service from November 1969 to November 1971 and February 1991 to April 1991. Thereafter, the Veteran continued to serve in the Army Reserves with periods of ACDUTRA from 1990-2005 as discussed below. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied reopening of the claim for entitlement to service connection for sleep apnea, which was previously finally denied in February 2013. In December 2018, the Board reopened the claim and remanded it for further development including for treatment records, a medical opinion, and if warranted, for verification of the Veteran’s active duty service while in the Reserves. The RO obtained treatment records and sought a medical opinion. In the Veteran’s July 2015 appeal to the Board, he requested a hearing. However, his claim is currently being granted in full herein, and a hearing would only delay adjudication and there is no prejudice to the Veteran in proceeding. 1. Sleep apnea 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). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). In this case, the record reflects the Veteran has been formally diagnosed with obstructive sleep apnea syndrome and is treated with continuous positive airway pressure (CPAP) therapy. See e.g. September 2003 VA treatment record (patient has sleep apnea, is on CPAP machine); October 2011 Norton Healthcare Sleep Disorders Center diagnosis. He has thus met the current disability requirement. A May 2014 excerpt from a USA Today article titled “Veterans’ claims for sleep apnea soar” accompanies the Veteran’s claims file. The excerpt includes that VA officials attribute a surge in sleep apnea claims to greater awareness of the condition, quoting a Veterans Benefits Administration (VBA) senior advisor who said that “sleep apnea has become more and more known as a disease.” The Veteran indicated in his written statements that he was first diagnosed with sleep apnea in the early 1990s, and he began to use a CPAP the same year. See e.g. November 2011 correspondence; May 2014 claim (submitted as disagreement with a previous February 2013 denial); July 2015 Form 9. He also wrote he had been examined and received treatment for sleep apnea, but did not request any treatment while in the Reserves because he was already using a CPAP and not aware of any other available treatment. See September 2012 statement in support of claim; see also May 2014 claim. Medical records in the claims file show the Veteran has continued to receive treatment from the private Norton hospitals. Records from Audubon and Brownsboro from the early 1990s for the Veteran are no longer available as per September 2012 letter from Norton Healthcare. However, their more recent records reflect the Veteran has been on a CPAP since 1994. See October 2011 Norton Sleep Center record. Other lay statements support a finding that the Veteran’s sleep apnea manifested during active service in the Reserves. In September 2012, the Veterans wife wrote to VA she has been able to observe him for at least 25 years and during that time, the Veteran has stopped breathing then gasped for air, and also has had loud snoring. The Veteran appealed to the Board in July 2015, writing that he was submitting statements on his behalf to verify the contention that sleep apnea was diagnosed in the 1990s, as others have observed his CPAP usage due to sleep apnea including while on active duty in the 1990s. In January 2015, Sergeant First Class A.L. wrote he served with the Veteran in the 1990s and that he remembers the Veteran had to use a sleep machine when they attended annual training and had problems with breathing and snoring while he was asleep. VA received a statement in December 2014 by retired Sergeant First Class T.G. who said he served with the Veteran in the Army Reserves for about 20 years, and during those years, including in the 1990s, they shared a room together and he saw that the Veteran was required to use a CPAP machine because of a problem with snoring and breathing while he was sleeping. In a statement received December 2014, retired Army Sergeant First Class R.C. wrote that he shared a room with the Veteran during summer camp in the late 1990s and saw him wearing a breathing device each night. The Veteran, his wife, and other witnesses are competent to report observable symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). There is no indication in the evidence of record that the Veteran, his wife, or the other witnesses lack credibility, therefore there statements as to the onset of the Veteran’s snoring and sleep issues are afforded significant probative value. In a November 2019 medical opinion, a VA attending physician found it was less likely as not that the Veteran’s sleep apnea “was incurred in or caused by the remand directive during service.” Acknowledging statements that the Veteran was using CPAP during the mid-1990s, the VA physician also wrote that “there is no proof” he was diagnosed during active duty, it “does not mean” that it “manifested during an active duty time period,” and it also “does not mean that military service caused” his sleep apnea. In a July 2020 deferred rating decision, the RO wrote that some of the records available for the VA physician to review had been included in error, and that the incorrect files needed to be unassociated. An addendum was requested. In an October 2020 addendum, the same VA attending physician authored an addendum regarding the etiology of the Veteran’s sleep apnea. She wrote that she did not find a sleep study which showed the Veteran’s sleep apnea during “ADT or IADT” and the only sleep study she found was from October 2011. Though notations in the record documented sleep apnea from the early 1990s, an actual diagnosis during “ADT or IADT” is not documented. She also wrote there is “no proof” the Veteran had sleep apnea from 1994 to 2011 as she did not see ongoing treatment. She reiterated that “the cause of the OSA is not military service” and that the cause was due to a body mass index consistent with obesity and crowding of the oropharynx. She wrote, “Just because a patient has alleged snoring and alleged periods of apnea in the mid-1990s, this, again, does not confirm that the patient’s OSA first manifested itself during a period of ADT and IADT. The opinion is of little, if any, probative weight. There is no requirement of a diagnosis in order to “confirm” that sleep apnea first manifested during a period of ACDUTRA. All that is required is that the evidence show that sleep apnea first manifested during a period of ACDUTRA. Moreover, a veteran’s “lay statements could be evidence sufficient to support [a claim for service connection for sleep apnea], and the mere fact that there is no medical evidence about his snoring does not, by itself, render his lay statements insufficient.” Maples v. Wilkie, No. 18-2016 (Feb. 11, 2019) (mem dec, Falvey, J.). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The fact that the Veteran had ACDUTRA every year with active duty point from 1990-2005, as shown by his Army Reserve Personnel Command Chronological Statement of Retirement Points, combined with the lay statements, reflects that it is at least as likely as not that the sleep apnea first manifested during a period of ACDUTRA. 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 sleep apnea is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. While the Board could remand the case for yet another opinion, such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. To the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.” Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.