Citation Nr: 21012481 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 181119-1112 DATE: March 4, 2021 ORDER March 4, 2021 Entitlement to service connection for sleep apnea disorder, diagnosed as obstructive sleep apnea, is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his sleep apnea began in service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from December 1976 to October 1983. This matter comes before the Board of Veteran’s Appeals (Board) on appeal of a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2019 at which time it denied several of the Veteran’s claims, including his service connection sleep apnea claim. The Veteran, through his representative, subsequently appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court), and thereafter the Board's decision with respect to this claim was vacated pursuant to a September 2020 Joint Motion for Partial Remand (JMPR), and the matter was remanded for further proceedings consistent with the Motion. The matter has now been returned to the Board. Service Connection Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Service Connection for Obstructive Sleep Apnea The Veteran and his representative assert that he is entitled to service connection for sleep apnea because the Veteran’s observable symptoms, which subsequently led to his post service diagnosis of obstructive sleep apnea, began while he was serving on active duty and have continued ever since. See, April 2018 Notice of Disagreement (NOD). See, September 2020 Appellate Brief. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board acknowledges that the Veteran has a current diagnosis of obstructive sleep apnea, based on a November 2014 sleep study, as noted in his October 2017 Sleep Apnea Disabilities Benefits Questionnaire (DBQ). Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that although the Veteran’s service-treatment records (STR) are silent for complaints of symptoms of sleep apnea, the Veteran has consistently reported that he experienced “witnessed apneas” during his active duty service, which he has subsequently explained to mean awakening frequently due to respiratory difficulties. See, September 2020 Appellate Brief. Based on further review, given that symptoms of sleep apnea are capable of lay observation, and the Veteran has been consistent with such statements, and is the basis of the October 2017 DBQ positive nexus opinion, the Board finds the Veteran’s statements as to his sleep apnea onset credible and of probative value. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be respiratory problems while sleeping, such as snoring. Layno v. Brown, 6 Vet. App. 465 (1994). Further, competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159 (a)(2). Accordingly, the Board finds that the second element for establishing service connection, in service occurrence, has been met. As to the nexus element, the October 2017 examiner (previously referenced) reported that if the Veteran was experiencing his reported symptoms (“witnessed apneas”) in-service, which, based on screening methods are consistent with service, then there is a greater than 50 percent probability that the Veteran’s sleep apnea started during his military service. As such, this examiner implicitly accepts that the onset of the Veteran’s obstructive sleep apnea occurred in service. Furthermore, she also reported that the Veteran’s service-connected depression and headaches can further exacerbate his obstructive sleep apnea. The Board notes that this is the only sleep apnea examination and nexus opinion of record. Consequently, in the absence of a negative nexus opinion directly contradicting this October 2017 positive nexus opinion, or facts in direct conflict to the Veteran’s report of “witnessed apneas” and snoring during his military service, the Board finds that the competent evidence of record is at least in equipoise as to whether the Veteran’s obstructive sleep apnea had its onset in service. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Accordingly, and giving the Veteran the benefit of the doubt, the Board finds the that service connection for obstructive sleep apnea is warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.