Citation Nr: 21010656 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-23 140 DATE: February 25, 2021 ORDER Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran’s right ankle disability had its onset in service. 2. The Veteran’s left ankle disability had its onset in service. 3. The Veteran’s sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1978 to June 1995. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that determined that new and material evidence had not been received to reopen claims for entitlement to service connection for a right ankle disability (listed as a right ankle condition) and for a left ankle disability (listed as a left ankle condition). By this decision, the RO also denied service connection for a low back disability (listed as a back condition) on a de novo basis. The RO further denied service connection for sleep apnea. The Boards notes that the November 2011 RO decision found that new and material evidence had not been received to reopen claims for entitlement to service connection for a right ankle disability (listed as a right ankle condition) and for a left ankle disability (listed as a left ankle condition). The Board also observes that the November 2011 RO decision denied service connection for a low back disability (listed as a back condition) on a de novo basis. Service connection for a right ankle disability (listed as a bilateral ankle condition); a left ankle disability (listed as a bilateral ankle condition); and for a low back disability (listed as low back strain), was previously denied in a final May 1998 RO decision. Thus, the Board was required to address whether new and material evidence had been received to reopen claims for service connection for a right ankle disability; a left ankle disability; and for a low back disability. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In April 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. As discussed above, the Board observes that service connection for a right ankle disability; a left ankle disability; and for a low back disability, was previously denied in a final May 1998 RO decision. The Board found, however, that new and material evidence had been received to reopen those claim pursuant to 38 C.F.R. § 3.156 (a). Therefore, the decision will address the merits of the underlying service connection claims for a right ankle disability; a left ankle disability; and a low back disability. In August 2018, the Board remanded the issues of entitlement to service connection for a right ankle disability; a left ankle disability; a low back disability; and for sleep apnea, for further development. A March 2020 RO decision granted service connection and a 10 percent rating for lumbosacral strain, effective May 1, 2010. Therefore, the issue of entitlement to service connection for a low back disability is no longer on appeal. 1. Right Ankle Disability and Left Ankle Disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran is service-connected for bilateral pes planus, with plantar fasciitis. He is also service-connected for PTSD, with symptoms of depression, anxiety and insomnia; migraine headaches; prostatitis; lumbosacral strain; left shoulder strain, with impingement syndrome; gastroesophageal reflux disease (GERD); vitreous floaters; postoperative residuals of a right inguinal hernia repair; eczema of the left ankle; bilateral tinea pedis; erectile dysfunction; and for tinnitus. The Veteran contends that he has a right ankle disability and a left ankle disability that are related to service, or, more specifically, are related to his service-connected bilateral pes planus, with plantar fasciitis. He specifically maintains that he had multiple strains to his right ankle and left ankle during service and that those conditions have persisted. He states that the Army wanted to extend his retirement date in order to operate on his right ankle and left ankle, and that VA examiners had also indicated that he should undergo operations on his bilateral ankles. The Veteran reports that he has bilateral ankle crepitus and weakness, and that his bilateral ankles will give way. He essentially asserts that he suffered from right ankle problems and left ankle problems during service and since service. The Veteran served on active duty in the Army from November 1978 to June 1995. The Veteran’s service treatment records show treatment for right ankle problems and left ankle problems on multiple occasions. A May 1991 treatment entry notes that the Veteran was seen for right foot pain, and that he had a history of pes planus, which was never treated or symptomatic. The examiner reported that the Veteran also complained of pressure on his bilateral ankles as well. The examiner reported that the Veteran had marked pes planus, with valgus stress to both ankles. The assessment was bilateral pes planus, with plantar fasciitis. A June 1991 consultation report notes that the Veteran reported that he had difficulty running due to arch pain. The examiner stated that the Veteran demonstrated mild edema to the feet, with no erythema, and xerosis to the medial malleolus area. The impression was bilateral pes planus and unstable bilateral ankles. An August 1991 entry indicates that the Veteran was seen for follow-up for his orthotics, and that he reported that he had cramping of the bilateral arches. It was noted that the Veteran also reported that he had right ankle instability, and that he used a left ankle support to stabilize that ankle. The examiner indicated that the Veteran was given bilateral ankle supports. No diagnoses were provided. A December 1991 physical profile report notes that the Veteran was to run at his own pace, with no jumping. His medical conditions were pes planus and a left ankle sprain. A December 1994 consultation report reflects that the Veteran complained of painful feet and calves, as well as pain in the posterior thigh. The Veteran also indicated that if he walked for long distances, his ankles would give out. He stated that such problems had been going on for approximately five to six years, with the symptoms worsening over the previous two to three years. The assessment was chronic lateral ankle instability and pes planovalgus, both symptomatic. A March 1995 treatment entry notes that the Veteran reported his ankles would go out less frequently. The assessment was ankle instability. On a medical history report at the time of a May 1995 separation examination, the Veteran checked that he had swollen or painful joints; arthritis, rheumatism, or bursitis; and foot trouble. The Veteran specifically reported that he had been advised to have surgery on both ankles. The reviewing examiner stated that the Veteran’s last examination was in December 1994, and that there were no internal changes since his last examination. A May 1995 objective separation examination report indicates, as to an evaluation of the Veteran’s lower extremities, that he had bilateral ankle instability, by history. The diagnoses included chronic ankle instability. Post-service private and VA treatment records show treatment for right ankle problems and left ankle problems, including bilateral ankle instability, by history; ankle instability; chronic ankle instability, bilateral; and a possible left early calcaneal spur. A December 1997 VA general medical examination report does not include an indication that the Veteran’s claims file was reviewed. The Veteran complained of bilateral foot pain since he was in the service. He stated that he could not walk more than a half mile, and that if he walked for longer distances, his feet would cramp up creating severe pain in his feet. The Veteran also indicated that he could not stand on his feet for more than ten minutes at a time. The examiner reported that a musculoskeletal/joints evaluation was normal. The examiner stated that x-rays, as to both of the Veteran’s ankles, were normal. The examiner reported that the rest of the physical examination was normal. A December 1997 radiological report, as to the Veteran’s bilateral ankles, shows that the ankle mortise was intact, bilaterally, with no acute fracture or dislocation present. It was noted that the base of the fifth metatarsal was intact; that no ankle joint effusion was present, bilaterally, and that pes planus deformities were noted, bilaterally. A December 1997 VA feet examination report, by the same examiner who conducted the December 1997 VA general medical examination, does not include a notation that the Veteran’s claims file was reviewed. The examiner indicated that the Veteran had pes planus. The examiner did not refer to any right or left ankle problems. A June 2019 VA ankle conditions examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that the onset of his claimed right ankle condition and left ankle condition was during service. He stated that he had multiple sprains to both ankles during service, and that the conditions had persisted. He maintained that he had no surgery, testing, injections, and that he did not use braces. The Veteran indicated that he currently had bilateral ankle crepitus and weakness, and that his bilateral ankles would give way. He related that he would take Motrin. It was noted that bilateral ankle x-rays from December 1997 were normal. As to diagnoses, the examiner indicated that the Veteran did not have current diagnoses associated with his claimed right ankle condition and left ankle condition. The examiner maintained that the claimed conditions were less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that the Veteran had multiple visits for ankle pain in his service treatment records, to include in 1991, 1992, 1993, 1994, and 1995. The examiner stated that the Veteran had a normal current examination. The examiner indicated that, therefore, no objective diagnosis was warranted. The examiner maintained that although the Veteran reported crepitus and weakness, he had a normal ankle examination. It was noted that there were no reports of increasing symptoms with repetitive use or flare-ups. The examiner indicated that, therefore, subjective ankle diagnoses were not warranted. The Board notes that the Veteran’s service treatment records indicate that he was treated for right ankle problems and left ankle problems on multiple occasions. The Veteran was diagnosed with unstable bilateral ankles; a left ankle sprain; chronic lateral ankle instability; ankle instability; and chronic ankle instability. The Board notes that a December 1997 VA general medical examination report and a December 1997 VA feet examination report, respectively, do not show any right ankle disabilities or left ankle disabilities. The Board notes, however, that there is no indication that the examiner, who conducted those examinations, reviewed the Veteran’s claims file. Although claims file review is not necessary, the probative value of a medical opinion is based on its reasoning and its predicate in the record so that the opinion is fully informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the examiner did not address the Veteran’s treatment for right ankle problems and left ankle problems on multiple occasions during service. Further, the examiner did not address the Veteran’s reports of right ankle problems and left ankle problems since service. The Board observes that the Veteran is competent to report right and left ankle problems during service and since service. See Davidson, 581 F.3d at 1313. Thus, the Board finds that the December 1997 VA general medical examination report and the December 1997 VA feet examination report, respectively, are not probative in this matter. The Board observes that a June 2019 VA ankle conditions examination notes that Veteran reported that the onset of his claimed right ankle condition and left ankle condition was during service. He stated that he had multiple sprains to both ankles during service, and that the conditions had persisted. The Veteran indicated that he currently had bilateral ankle crepitus and weakness, and that his bilateral ankles would give way. The examiner, following a review of the claims file, indicated that the Veteran did not have current diagnoses associated with his claimed right ankle condition and left ankle condition. The examiner specifically maintained that the claimed conditions were less likely than not incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that the Veteran had multiple visits for ankle pain in his service treatment records, to include in 1991, 1992, 1993, 1994, and 1995. The examiner stated that the Veteran had a normal current examination, and that therefore, no objective diagnosis was warranted. The examiner maintained that although the Veteran reported crepitus and weakness, he had a normal ankle examination, and that, as there were no reports of increasing symptoms with repetitive use or flare-ups, subjective ankle diagnoses were not warranted. The Board notes that the examiner found that the Veteran did not have a current right ankle disability and/or a left ankle disability. The Board observes, however, that post-service private and VA treatment records show treatment for right ankle problems and left ankle problems, including bilateral ankle instability, by history; ankle instability; chronic ankle instability, bilateral; and a possible left early calcaneal spur. Additionally, the examiner did not specifically address the Veteran’s reports of right ankle problems and left ankle problems since service. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the VA examiner’s opinions, pursuant to the June 2019 VA ankle conditions examination report, are not very probative in this matter. The Board observes that the evidence indicates that the Veteran has diagnosed right ankle disabilities and left ankle disabilities, including chronic right ankle instability and left ankle instability. The Board notes that, to the extent that the Veteran does not have a diagnosable disability, the VA must consider whether he has functional impairment for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). The Board observes that the Veteran has specifically indicated that he experiences bilateral ankle crepitus and weakness, and that his bilateral ankles would give way. Additionally, the Board finds the Veteran’s reports of right ankle problems and left ankle problems during and since his period of service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Further, to the extent it is common knowledge and within the ordinary experience of a lay person to understand pain is associated with over use or having consistent pressure at a specific point, the Veteran’s right ankle pain/and or instability, and his left ankle pain and/or instability, are directly observable and within the competence of a lay person to identify. Saunders, 886 F.3d at 1356, 1368. Therefore, the Board finds that the Veteran has a current right ankle disability, and a current left ankle disability. Resolving any doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right ankle disability, and his left ankle disability, commenced during his period of service. In light of the evidence, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a right ankle disability, and for a left ankle disability. Therefore, service connection for a right ankle disability, and for a left ankle disability, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. 2. Sleep Apnea The Veteran is service-connected for PTSD, with symptoms of depression, anxiety, and insomnia. He is also service-connected for bilateral pes planus, with plantar fasciitis; migraine headaches; prostatitis; lumbosacral strain; left shoulder strain, with impingement syndrome; gastroesophageal reflux disease (GERD); vitreous floaters; postoperative residuals of a right inguinal hernia repair; eczema of the left ankle; bilateral tinea pedis; erectile dysfunction; and for tinnitus. As discussed above, he is now further service-connected for a right ankle disability and for a left ankle disability. The Veteran contends that his has sleep apnea that is related to service. He specifically maintains that he had sleep problems, including snoring and stopping breathing, since his period of service. The Veteran indicates that his sleep problems began in 1980 during his period of service, and that his spouses had told him that he constantly snored, and that he would stop breathing during the night. The Veteran essentially asserts that he experienced sleep apnea during his period of service and that it has continued since that time. The Veteran served on active duty in the Army from November 1978 to June 1995. The Veteran’s service treatment records do not specifically show treatment for sleep apnea. Such records do show that he reported that he had trouble sleeping on two occasions during service. On a medical history form at the time of a December 1994 examination report, the Veteran checked that he had frequent trouble sleeping. The reviewing examiner indicated that the Veteran reported that he had trouble falling asleep. The objective December 1994 examination report includes notations that the Veteran’s nose; sinuses; lungs and chest; and neurological evaluation, were all normal. On a medical history report at the time of a May 1995 separation examination report, the Veteran checked that he had frequent trouble sleeping. The reviewing examiner stated that the Veteran’s last examination was in December 1994, and that there were no internal changes since his last examination. The objective May 1995 examination report includes notations that the Veteran’s nose; sinuses; lungs and chest; and neurological evaluation, were all normal. Post-service private and VA treatment records, including a VA examination report, show treatment, including sleep studies, for sleep apnea and obstructive sleep apnea. A July 2010 statement from the Veteran’s ex-wife indicates that during their marriage, he would stop breathing in the middle of the night. She stated that the Veteran was fine before his hernia operation in 1982, but after that, he began to stop breathing while he slept. The Veteran’s ex-wife stated that that was when the Veteran began snoring as well. A July 2010 statement from the Veteran’s second ex-wife notes that she lived with the Veteran from 2001 to the end of 2008. She stated that the Veteran did stop breathing in his sleep, and that such would occur frequently, and often last for more than thirty seconds. She reported that until late in their relationship, the Veteran apparently did not know that he would quit breathing while sleeping. An October 2010 VA neurological examination report includes a notation that the Veteran’s claims file was not available at the time of the examination. The Veteran reported that he had been told by his second ex-wife that he stopped breathing at night for periods of thirty to sixty seconds, and that he frequently snored. He stated that his ex-wife indicated that she would shove him to get him to start breathing again. The Veteran related that is first ex-wife noticed that he had snoring and episodes of stopping breathing after his hernia operation in 1981. As to an impression, the examiner indicated that it appeared as likely as not from the history provided by the Veteran, that he possessed some form of parasomnia, which by witnessed accounts, was at least as likely as not, to include a complex of sleep apnea; insomnia; and nightmares. The examiner reported that by a witness account of the Veteran’s first ex-wife, he developed at least part of the symptoms, snoring and periods of respiratory halting, in 1981 during his military service. The examiner maintained that the Veteran would have a sleep study, which was previously ordered for him. It was noted that such would be a definitive test necessary to fully support the diagnosis of sleep apnea. In an October 1010 addendum, the examiner indicated that the claims file was reviewed and that there was no change in the impression. A November 2010 VA sleep procedure report, by a different examiner than who conducted the October 2010 VA neurological examination report, indicates that a sleep study was performed in October 2010. As to a diagnosis, the examiner stated that there was snoring, but no evidence for a significant amount of sleep disordered breathing. The examiner reported that the degree of sleepiness was out of proportion to the number of events. It was noted that a sleep diary to look at sleep continuity, as well as an expanded sleep history, might be in order to probe for the presence of other sleep disorders. The examiner indicated that if sleepiness and complaints of snoring and poor sleep persisted, despite review of medications, fitness, and sleep hygiene, a second sleep study may be important to pursue. A May 2017 lay statement from the Veteran’s daughter indicates that from 1996 to 2001, she distinctly remembered the Veteran having issues in his sleep. She stated that he would constantly snore, and that his snoring was incredibly loud and could be heard through closed doors. The Veteran’s daughter reported that it also sounded like he was struggling to breath in his sleep. A June 2019 VA sleep apnea examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that he had trouble sleeping for years. He stated that he used a continuous positive airway pressure (CPAP) machine regularly, but that he stopped using it nine months earlier for no reason. The Veteran indicated that he had trouble sleeping, restless sleep, and daytime restlessness. It noted that a sleep study in September 2017 was consistent with obstructive sleep apnea. The diagnosis was obstructive sleep apnea. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that the Veteran had a singular complaint of trouble sleeping during service. The examiner stated that a September 2017 sleep study was consisted with obstructive sleep apnea. The examiner maintained that the Veteran was not diagnosed with obstructive sleep apnea until 2017, and that he was not evaluated for trouble sleeping until 2011, well after his separation from service. The examiner indicated that the Veteran’s sleep apnea was less likely than not incurred in, or otherwise the result of service. The Board observes that the Veteran’s service treatment records do not specifically show treatment for sleep apnea. The Board notes, however, that such records do show that the Veteran reported frequent trouble sleeping on two occasions during service, including at the time of his May 1995 separation examination. The Board notes that post-service treatment records show that the Veteran was treated for sleep apnea, including with sleep studies. Additionally, the Board observes that the Veteran has reported that he suffered from sleep apnea symptoms during service, and an ex-wife of the Veteran reported that he suffered from snoring, and stopping breathing, since a hernia operation during his period of service. The Board further notes that the Veteran’s daughter reported that from 1996 to 2001, she distinctly remembered the Veteran having issues in his sleep. She stated that the Veteran would constantly snore, and it also sounded like he was struggling to breath in his sleep. The Board notes that the examiner, pursuant to an October 2010 VA neurological examination report, including an October 2010 addendum, indicated, following review of the claims file, that it appeared as likely as not from the history provided by the Veteran, that he possessed some form of parasomnia, which by witnessed accounts, was at least as likely as not, to include a complex of sleep apnea; insomnia; and nightmares. The examiner maintained that the Veteran would have a sleep study, and that such would be a definitive test necessary to fully support the diagnosis of sleep apnea. The Board observes, however, that following an October sleep study, a different examiner, pursuant to a November 2010 VA sleep procedure report, found, as to a diagnosis, that there was snoring, but no evidence for a significant amount of sleep disordered breathing. The Board observes that the respective examiners, pursuant to the October VA neurological examination report, with October 2010 addendum, and the November 2010 VA sleep procedure report, did not have access to subsequent sleep studies showing that the Veteran had sleep apnea. The respective examiners also did not address the Veteran’s reports of sleep problems during service and since service. The Board observes that the Veteran is competent to report sleep problems during service and since service. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the respective examiners’ opinions, pursuant to the October 2010 VA neurological examination report, with October 2010 addendum, and the November 2010 VA sleep procedure report, are not very probative in this matter. The Board observes that a June 2019 VA sleep apnea examination reports relates a diagnosis of obstructive sleep apnea. The examiner, following a review of the claims file, indicated that the claimed condition was less likely than not incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner specifically found that the Veteran’s sleep apnea was less likely than not incurred in, or otherwise the result of service. The examiner maintained that the Veteran was not diagnosed with obstructive sleep apnea until 2017, and that he was not evaluated for trouble sleeping until 2011, well after his separation from service. The Board observes that the examiner did not address a July 2010 lay statement from an ex-wife of the Veteran that reported that he suffered from snoring, and stopping breathing, since a hernia operation during his period of service. The examiner also did not address a May 2017 lay statement from the Veteran’s daughter that reported that from 1996 to 2001, she distinctly remembered the Veteran having issues in his sleep. She stated that the Veteran would constantly snore, and it also sounded like he was struggling to breath in his sleep. Further, the Board notes that examiner did not address the Veteran’s reports of sleep problems during service and since service. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the opinions provided by the examiner, pursuant to the June 2019 VA sleep apnea examination report, are not probative in this matter. The Veteran is diagnosed with sleep apnea. The Board finds the Veteran’s reports of sleep apnea symptoms during service and since service to be credible. See Jandreau, 492 F.3d at 1372 (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board also finds that the reports from an ex-wife of the Veteran that he suffered from snoring, and stopping breathing, since a hernia operation during his period of service, and from his daughter that from 1996 to 2001, that the Veteran would constantly snore, and it also sounded like he was struggling to breath in his sleep, to be credible. Resolving any doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current sleep apnea commenced during his period of service. In light of the evidence, the Board cannot conclude that the preponderance of the evidence is against granting service connection for sleep apnea. Therefore, service connection for sleep apnea, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. D. Regan, 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.