Citation Nr: 21011367 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-29 135 DATE: March 1, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s OSA was incurred in service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 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 June1998 to August 1998 and February 2004 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that in the Veteran’s substantive appeal, he requested a Board hearing; however, in correspondence received in May 2019, he indicated that he was declining the Board hearing. In October 2019, the Board remanded this matter for further evidentiary development to consider private medical evidence submitted in November 2018 and for the issuance of an Supplemental Statement of the Case (SSOC). Following the remand, the Veteran’s representative submitted an October 2019 correspondence clarifying that the Veteran intended to waive Agency of Original Jurisdiction (AOJ) review of the new evidence and requests the Board render a decision based on the evidence of record. The Board notes that although the December 2020 SSOC considered the November 2018 private medical evidence, it did not consider an August 2018 private medical opinion (discussed herein); however, as the Veteran has waived review by the AOJ (and the Board is herein granting the appeal), he is not prejudiced by the Board reviewing such evidence in the first instance. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent medical evidence, however, is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Obstructive Sleep Apnea The Veteran’s assertions include that his sleep apnea disability is related to in-service environmental hazard exposure, namely burn pits. The Veteran served in Iraq and therefore, exposure to burn pits is conceded. The record reflects that the Veteran has a current disability of sleep apnea, first diagnosed in July 2012. Thus, the issue before the Board is whether the Veteran’s OSA is related to his military service. The Veteran’s service treatment records during his periods of active duty are negative for a diagnosis of OSA. In December 2017, a VA opinion was obtained addressing whether the Veteran’s obstructive sleep apnea was due to exposure to burn pits in service. Following review of the Veteran’s claims file, the examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury or illness. As rationale, the examiner noted that a July 2012 polysomnography lists a diagnosis of mild obstructive sleep apnea. The examiner indicated that this was the second sleep study—that a sleep study was conducted in July 2011 that revealed no OSA diagnosis. Further, he explained that exposure to burn pits does not cause OSA; OSA is caused by obstruction in the upper airways. A buddy statement received in July 2018 described the Veteran as snoring while sleeping and always looked tired during the day. In August 2018, the Veteran submitted a private medical opinion by Robert Townsend, D.O. He stated that he reviewed the Veteran’s claims file and service treatment records, as well as his more contemporaneous records and history. Upon review, Dr. Townsend opined that it is at least as likely as not that the Veteran’s current OSA was aggravated by burn pit exposure in service. As rationale, Dr. Townsend stated that the Veteran’s OSA demonstratively was aggravated during active duty and was as likely as not caused by his exposure to environmental hazards, including burn pits. He noted that the Veteran’s service records show that on his post-deployment health assessment, he indicated that he was experiencing feeling tired after sleeping. The Veteran reported that he routinely was present during the use of burn pits to dispose of refuse generated by the base. Dr. Townsend noted that a buddy statement indicated that during deployment to Iraq, the Veteran was required to mix human waste from the latrines with diesel fuel and burn the waste. He then had to bury the waste in a pit. This same statement also indicates that the Veteran snored when he slept and that he looked tired during the day. Further buddy statements during his deployment state that the Veteran would snore loudly at night and would wake up as if he could not breathe. Dr. Townsend pointed out that symptoms of obstructive sleep apnea include loud snoring, gasping for air during sleep, excessive daytime sleepiness (hypersomnia). He noted that all of these symptoms manifested themselves during the Veteran’s active duty period. The statements provided by fellow service members illustrate that the Veteran chronically snored, and experienced hypersomnia during active duty. Furthermore, he noted, there is evidence that he experienced gasping for breath during sleep. Dr. Townsend indicated that exposure to environmental hazards, including burn pits, has a documented link to the development of a host of chronic respiratory conditions. He discussed a 2015 VA study that received 28,426 questionnaires from veterans and active duty service members (99 percent of whom were exposed to burn pits). Those questionnaires indicated that 30 percent of this group of soldiers were diagnosed with some sort of respiratory illness to include chronic obstructive pulmonary disorder, chronic bronchitis, asthma. He noted that there was more study to be done, but noted that it was clear that the Veteran’s exposure to burn pits during his active duty period has had a deleterious effect on his respiratory health, and that it was at least as likely as not to have caused the Veteran’s OSA to deteriorate at a rate faster than normal. Upon review of the conflicting medical opinions of record addressing direct service connection, the Board finds the August 2018 private medical opinion more probative than the December 2017 VA opinion, as it was based on a more comprehensive review of the Veteran’s medical history with opinions supported by medical literature and buddy statements, whereas the VA examiner did not provide supporting rationale for their opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Allen v. Brown, 7 Vet. App. 439 (1995); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Notably, the Board may only consider independent medical evidence to support its findings, cannot disregard favorable evidence, and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Given the above, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s OSA was incurred during his military, to include exposure to burn pits. Accordingly, affording the Veteran the benefit of the doubt, service connection for sleep apnea is granted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.