Citation Nr: 21012610 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-39 961 DATE: March 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran’s obstructive sleep apnea is related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1994 to August 1997 and from February 2010 to December 2015. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is as follows: In July 2016, the RO issued a rating decision which denied the Veteran’s claim. Further development followed and in May 2019 the Board denied the Veteran’s claim. However, the Veteran appealed the May 2019 Board decision to the U.S. Court of Appeals for Veteran’s Claims (CAVC) and in May 2020, CAVC issued a Joint Motion for Remand (JMR) vacating the May 2019 Board decision due to reliance on an inadequate VA medical opinion and ordered the Board to acquire a new VA examination. Generally, the Board is required to comply with CAVC orders; however, in this case, the Board finds the evidence of record is sufficient to grant the Veteran’s claim rather than remand for further development. Thus, since this is a full grant of the benefit sought on appeal, the Veteran is not prejudiced by the Board’s actions. The Veteran seeks entitlement to service connection for obstructive sleep apnea that he alleges began during active duty service. 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 requires: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As the evidence of record was recently recited in the May 2019 Board decision, the following will not be a full recitation of the evidence of record. Turning to the evidence of record, the service treatment records (STRs) indicate in April 2015 he underwent a sleep study and reported difficulty falling asleep, snoring, a lapse of breathing while sleeping with awakening, and trouble staying asleep. The sleep study diagnosed the Veteran with “sleep related Bruxism,” and he was sent educational material for sleep apnea. In May 2015, he was evaluated for sleep apnea and the examination determined he was negative. In March 2016, only three months after separation from service, private medical records indicate he was diagnosed with obstructive sleep apnea. In May 2017, a VA addendum opinion was entered into the claims file. The examiner opined it was less likely than not the Veteran’s sleep apnea was the result of active duty service. However, the May 2020 JMR determined the addendum opinion to be inadequate. In January 2021, a private medical opinion was submitted by a Dr. P.C. which included a review of the claims file and a recitation of complaints and medical history. The opinion cited to multiple studies and medical evidence indicating deficiencies of the in-service sleep study known as the “First Night Effect,” where after only testing for one night, a false negative is derived. Ultimately, the examiner found it “more likely than not” his obstructive sleep apnea developed in-service. After a review of the claims file in conjunction with the applicable laws and regulations and affording all reasonable doubt to the Veteran, the Board finds his obstructive sleep apnea is the result of his active duty service. The Board recognizes that the Veteran currently is diagnosed with obstructive sleep apnea. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. Here, the Board acknowledges the Veteran’s in-service complaints of and treatment for the symptoms of obstructive sleep apnea occurring in April and May 2015 and his diagnosis of sleep apnea only three months after separation from service. Moreover, the Board notes that sleep apnea is a respiratory disorder caused by the blockage of the upper airway by the tongue and soft palate that affects an individual’s quality of sleep. See 38 C.F.R. § 4.97, Diagnostic Code 6847. Indeed, such structural changes in the airways do not occur overnight; rather, they occur over time. Furthermore, the Board finds the January 2021 Dr. P.C. medical opinion which determined his sleep apnea was more likely than not the result of his active duty service most probative as it was grounded in the medical evidence of record and sound service connection principles. Accordingly, and absent evidence to the contrary, his sleep apnea cannot be reasonably disassociated from his period of active service and the Board will afford all reasonable doubt in the Veteran's favor and find that his sleep apnea is the result of active service. See Shedden, 381 F.3d at 1167. Hence, the benefit of the doubt rule applies. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, the Veteran’s claim of service connection for sleep apnea is granted. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.