Citation Nr: 21012692 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-27 440 DATE: March 5, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for periodontal disease has been withdrawn. FINDINGS OF FACT 1. The competent, credible, and probative lay and medical evidence is at least in relative equipoise as to whether the Veteran’s obstructive sleep apnea (OSA) was incurred in or otherwise caused by active duty service. 2. In February 2021, the Veteran requested a withdrawal of the appeal as to the issue of entitlement to service connection for periodontal disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for withdrawal of an appeal by the Veteran have been met as to the issue of entitlement to service-connection for periodontal disease. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from June 1978 to February 1988, August 1990 to July 1991, February 2003 to February 2004, and in November 2006 with additional periods of service in the Reserves. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Portland. In February 2021, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge regarding the issue of service connection for sleep apnea. At that time, the Veteran requested his service connection appeal for periodontal disease be withdrawn. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 20.205. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3). As such, the request for withdrawal was accepted on record by the Board and the issue of entitlement to service connection for periodontal disease is withdrawn. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including obstructive sleep apnea (as an organic disease of the nervous system), will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for sleep apnea The Veteran contends his sleep apnea was incurred in, aggravated by, or otherwise related to active duty service. Specifically, he asserts that his symptoms of sleep apnea began during service with continuous symptoms thereafter. The Veteran has a current diagnosis of obstructive sleep apnea as evidenced by a July 2016 sleep study. See MTR- Gov Facility, 7/6/2018, pg. 10/17. Service treatment records do not contain complaints of sleep disturbance or a diagnosis of sleep apnea during active duty. However, treatment records from May and November 2006, just prior to resuming active duty and immediately after separation, demonstrate that he began to seek treatment for his sleep disturbance symptoms and continuously sought treatment for years after. The Veteran has submitted eleven lay statements testifying to the presence and nature of his symptoms, including their onset and continuance. See, Statements in Support, 5/11/2015. Notably, many statements are from fellow service-members that shared sleeping quarters with the Veteran throughout his active duty service. Several roommates note the prevalence of the Veteran’s heavy snoring and disruptive sleep patterns during active duty. They assert that the Veteran would often snore loudly and suddenly cease to breathe for 30 seconds or more, becoming restless and waking up often to gasp for air. They also note that his sleep habits were well-known to Squadron members in the 1980s and the symptoms were noticed after separation. Personal friends of the Veteran state that he often complained of exhaustion and lack of restful sleep throughout the years. Many voice concerns as the Veteran’s symptoms became worse and his breathing became more sporadic during the night. The lay statements also corroborate the Veteran’s contention that he first sought treatment for his sleep apnea when he was told by his camping friends that his sleep disturbance had become worrisome. The Veteran’s fellow service-members are competent to report the Veteran’s sleeping patterns and loud snoring, and what they witnessed during service; and the Veteran’s camping friends are competent to report their observations that the Veteran stopped breathing during sleep. The Veteran is competent to report that he experienced symptoms of snoring, unrestful sleep, and daytime sleepiness or tiredness during that period. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). He has presented credible testimony his symptoms began in and have continued since service, and they are given probative weight as they are internally consistent and consistent with other evidence of record, which shows that these symptoms are attributable to his sleep apnea diagnosis. Contemporaneous medical evidence is not required under 38 C.F.R. § 3.303 (b) to find that a chronic disease was “noted” in service or within a presumptive period for purposes of continuity of symptomatology. “[A]s long as the condition is noted at the time the veteran was in service such noting need not be reflected in any written documentation (other than as required to be in a format sufficient for inclusion as part of the record and proceedings before the Secretary and the Board)... either contemporaneous to service or otherwise.” Savage v. Gober, 10 Vet. App. 488, 496 (1997). As such, the Board finds that the Veteran continued to experience the same symptoms since his separation from service. The Veteran was provided a VA examination in September 2017 and November 2018, and has undergone three sleep studies; in May 2006, November 2011, and July 2016. The Board notes the November 2018 VA examiner’s negative nexus opinion, however, assigns it little probative weight. The examiner concluded the Veteran’s sleep apnea was less likely than not related to service because the 2016 sleep study indicated only mild obstructive sleep apnea (OSA) and his diagnosis was 10 years after separation. She reasons, “There is no evidence that his obstructive sleep apnea was incurred in or caused by active military service.” and instead notes his gender and advancing age as risk factors. In so doing, the examiner dismisses the several lay statements of service members that witnessed the Veteran exhibit symptoms during active duty and instead provides a conclusion inconsistent with the evidence. See, Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board finds the opinion fails to give full consideration to the competent and credible evidence of record. (Continued on the next page)   Alternatively, the September 2017 VA examiner concluded the Veteran’s sleep apnea was more likely than not related to service. The examiner concluded the Veteran’s sleep apnea demonstrated in the 2006 sleep study was causally related to his sleep disturbance symptoms in-service. See C&P, 9/29/2017, pg. 3/3. Although the examiner did not have the benefit of the 2011 and 2016 sleep studies during her review, she provided medical literature in support of her analysis and gave full consideration to the Veteran’s contentions and the lay statements of in-service onset. In light of the foregoing evidence, the Board finds that the Veteran’s sleep apnea began during service. Furthermore, the evidence is at least in equipoise that, despite the lack of a diagnosis of sleep apnea in service, the Veteran’s condition was noted and he has shown a continuity of symptomatology since separation. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection for sleep apnea is warranted. Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.