Citation Nr: 21013008 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-20 460 DATE: March 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to a compensable rating for migraine headaches is remanded. FINDING OF FACT The most probative evidence is at least in relative equipoise as to whether the Veteran’s obstructive sleep apnea had its onset during or is causally related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1978 to May 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran and her husband testified before the undersigned Veterans Law Judge during a hearing in January 2021. A transcript of the hearing is of record. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for obstructive sleep apnea The Board finds that the most probative evidence is at least in relative equipoise as to the claim of entitlement to service connection for obstructive sleep apnea. With resolution of reasonable doubt in the Veteran’s favor, the appeal is granted. Service medical records do not show any symptoms, complaints, treatment, or diagnoses of obstructive sleep apnea or symptoms of a sleep disorder. The Veteran was diagnosed with obstructive sleep apnea after a sleep study in 2003. Thus, the questions for the Board are: 1) whether there exists an in-service event, injury, symptoms, or disease relevant to sleep apnea, and 2) whether there is an etiological nexus between any such in-service occurrence and current obstructive sleep apnea. The Veteran submitted a letter from Dr. F.M. dated May 2011. He stated, among other things, that the Veteran was diagnosed with obstructive sleep apnea in September 2003, and opined that it is more likely that she has had sleep apnea for many years, which includes the time spent on active military service. In January 2021, the Veteran testified, among other things, that she sought treatment for sleep apnea symptoms during military service, that she had a sleep study in-service, but the military never provided her with the results, and that she was prescribed a continuous positive airway pressure (CPAP) machine during service. Her husband testified that they were married during service, and that she would gasp for air and sound like she would stop breathing in her sleep. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). Although there is some evidence against the claim, the Board finds that Dr. F.M.’s opinion and the lay testimony provided by the Veteran and her husband places the evidence at least in relative equipoise as to whether obstructive sleep apnea began during military service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection is warranted. REASONS FOR REMAND 2. Entitlement to a compensable rating for migraine headaches is remanded. The Board finds that the above claim must be remanded for a VA examination documenting the current severity of the Veteran’s migraine disorder. See 38 U.S.C. § 5103A(d); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s last VA examination for migraine headaches was in December 2012, more than eight years ago. She has asserted that her disorder has worsened since that time. Accordingly, the Board finds that this matter must be remanded for an examination documenting the current severity of the Veteran’s service-connected migraine headache disorder. The matter is REMANDED for the following action: 1. Please schedule a VA examination documenting the current severity of the Veteran’s service-connected migraine disorder. The examiner is asked to describe the disorder in detail and document all symptoms necessary for rating it under the relevant criteria. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.