Citation Nr: 21012584 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-43 592 DATE: March 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran’s OSA had its onset during his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1985 to August 1989 and in the Air Force from March to June 1995, January to May 2004, April 2009 to September 2009, and February 2010 to April 2010, with additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the Board notes that within one year of the June 2017 rating decision that denied service connection for OSA, based at least in part of there being no evidence of a current diagnosis, the Veteran submitted private medical treatment records demonstrating a diagnosis of OSA. See June 2017 private treatment records. Thus, the June 2017 rating decision never became final and is the one on appeal to the Board. 38 C.F.R. § 3.156(b). The Veteran asserts that his OSA had its onset during active duty service and specifically that it is due to an injury incurred during training in Korea in 1989. See September 2020 Board Hearing Transcript at 4. The Board agrees. Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Here, the Veteran has a current diagnosis of obstructive sleep apnea. See September 2006 Sleep Study. Therefore, element one of service connection is met. As to the second element, in-service incurrence of a disease or injury, the Veteran reports that while on a two week field excursion in the mountains of Korea in approximately 1989, he was inadvertently struck in the face with an M-16 rifle resulting in trauma to his nose and two black eyes. See September 2020 Board Hearing Transcript at 3-4. The Veteran testified that at the time, as he was in the field, he did not receive proper medical care. Id. The Veteran’s ex-spouse submitted a statement that she was married to him at the time of the incident, specifically remembers that upon his return from Korea he had two black eyes, that the Veteran reported to her at that time he had been struck in the face in Korea, and shortly thereafter the Veteran began to snore. See January 2021 lay statement from N.F. Lay testimony is competent to establish the presence of observable symptomatology where the determination is not medical in nature and is capable of lay observation such as reporting being struck in the face, observing black eyes, and hearing snoring. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the Veteran and his ex-spouse are competent to report these easily observable symptoms and has no reason to doubt their credibility. Accordingly, the Board finds that the Veteran’s suffered a traumatic injury to his face while still on active duty and element two of service connection is met. Regarding the final element of service connection, or nexus, the only evidence is in favor of the claim. In an October 2020 letter from Ear, Nose, and Throat Surgical Associates, Dr. W.B. (a board-certified specialist) reviewed the Veteran’s medical history as well as the Veteran’s report of an in-service trauma and opined that it was at least as likely as not that the Veteran’s current OSA is due to being struck in the face while on active duty. Dr. W.B. went on to explain that the Veteran has no other known risk factors in developing OSA and that nasal bone fractures are known to lead to nasal obstruction and septal deviation that contribute to and exacerbate OSA. See October 2020 Letter from Dr. W.B. In a separate October 2020 letter, Dr. S.J. (also a board-certified specialist) reviewed the Veteran’s sleep study, his ENT treatment records, and the statements regarding his in-service facial trauma and opined that as the Veteran has no other known risk factors for developing OSA, that it was at least as likely as not that the Veteran’s OSA was proximately due to his in-service nasal injury. See October 2020 Letter from Dr. S.J. Accordingly, the Board finds that the nexus element of service connection is met and entitlement to service connection for OSA is warranted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.