Citation Nr: 21012567 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-15 860 DATE: March 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran’s sleep apnea had onset during his period of active duty service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for the award of service connection for sleep apnea have been met. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2006 to July 2009. This matter comes to the Board of Veterans’ Appeals on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of the hearing has been associated with the Veteran’s claims file. This matter was previously before the Board in July 2019 and July 2020. The Board notes that the issue was originally characterized as that of entitlement to service connection for a sleep disorder, to include sleep apnea and sleep disturbance. In July 2020, the Board denied the issue of service connection for a disability other than sleep apnea manifesting in sleep disturbance, but remanded the issue of entitlement to service connection specifically for sleep apnea, for further evidentiary development. Entitlement to service connection for obstructive sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303(a). Service connection may also 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). In this case, the Veteran contends that symptoms of sleep apnea manifested while he was serving on active duty, and that service connection should be granted based on in-service onset. The Board notes that some of the Veteran’s sleeping problems, which have been documented during and since service, have been attributed to insomnia, as a symptom of his service-connected major depressive disorder. The question before the Board at this juncture, is whether the Veteran’s separately-diagnosed obstructive sleep apnea disability had its onset in service, or is otherwise related to service or a service-connected disability. For the reasons discussed below, the Board finds the evidence to be at least in equipoise as to whether the disability was incurred during service. As noted above, the Veteran discharged from active duty service in July 2009. His service treatment records document complaints of trouble sleeping. Post-service treatment records show that in August 2013, the Veteran complained of not being able to sleep, snoring at night, and feeling sleepy during the daytime. See an August 23, 2013 VA Primary Care Note. His physicians suspected obstructive sleep apnea at the time, and ordered home sleep testing. In April 2014, the Veteran was formally diagnosed with obstructive sleep apnea, after a sleep study. The examiner noted that the Veteran, at 28 years old, reported a history of loud snoring, awakenings with gasping and choking, witnessed cessation of breathing, and excess sleepiness. The Veteran reports having experiencing these symptoms since service, and in support of this assertion, he has submitted lay statements from two fellow service-members who attest to having witnessed the Veteran snoring loudly, stopping breathing and gasping for air in his sleep. See the statements from L.H.S. and C.A.B., dated in March 2016. The Veteran also competently reported at his hearing before the Board that his mother noticed after he returned home following service that he was snoring loudly, which was something he had not done prior to entering service. Also at his hearing, the Veteran testified that once he was formally diagnosed, he was prescribed a CPAP machine, which has helped alleviate his longstanding symptoms. This fact has been corroborated by the October 2020 VA examiner, who made clear that the Veteran’s disability is well-controlled with use of a CPAP. The medical opinion evidence of record does not adequately address whether the Veteran’s obstructive sleep apnea had onset during service. Indeed, the most recent examiner who offered an opinion appeared to discount the notion that the Veteran’s disability may have been present during service, but not diagnosed at time, based on the fact that the Veteran had comorbid insomnia (a symptom of depression), and a finding that snoring alone does not necessarily mean that sleep apnea was present. Moreover, the examiner rejected the buddy statements provided by the Veteran because they were submitted after the Veteran’s diagnosis – suggesting that the statements’ should therefore be considered not credible. The examiner offered an inadequate medical discussion as to why this Veteran’s sleep apnea, first suspected in August 2013, did not at least as likely as not have had onset prior to the Veteran’s discharge. The Board finds nothing in the record to call into question the Veteran’s reported history of symptoms during and since service, or the reported observations of the Veteran’s fellow service members. The Board also finds it probative that the Veteran’s reported symptoms of snoring, stopped breathing during sleep and daytime fatigue were alleviated once the disability was diagnosed and treated with a CPAP machine. The United States Court of Appeals for the Federal Circuit has held that a Veteran’s lay evidence may be competent to establish etiology if the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran and his fellow service members have credibly described a history of symptoms that began in service, including snoring, observed apnea, gasping for air, and daytime sleepiness. In this case, the Board assigns probative weight to the lay evidence describing symptoms that began in service, which formed the basis for the Veteran’s referral for a sleep study just a few years following discharge, and supports the later diagnosis of obstructive sleep apnea. The Board accordingly finds that the evidence of record is at least in equipoise as to whether the Veteran’s obstructive sleep apnea had onset in service. Entitlement to service connection for obstructive sleep apnea is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.