Citation Nr: 21013247 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-09 869 DATE: March 9, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s obstructive sleep apnea had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for obstructive sleep apnea disorder are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2004 to May 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for obstructive sleep apnea is granted. Service connection will be granted if the evidence demonstrates that the current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in service injury or disease; and (3) a relationship between the two. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Sleep apnea is not a chronic disability under 38 C.F.R. § 3.309(a), and reports of a continuity of symptomatology cannot support a claim for service connection under 38 C.F.R. § 3.303(b). The Board will consider any lay reports of a continuity of symptoms, however, in the context of a claim for service connection under 38 C.F.R. §§ 3.303(a) and (d). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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). The Veteran contends in his November 2020 hearing that he first experienced symptoms of sleep apnea when he was in Iraq on his third deployment. With respect to the first element of service connection, the Veteran underwent a VA sleep study in September 2012 where he was diagnosed with obstructive sleep apnea. Therefore, the Veteran has a current disability. See September 2012 Medical Treatment Record- Government Facility. With respect to element two, in service injury or disease, the probative evidence of record indicates that the Veteran’s sleep apnea began during service. The Veteran’s service treatment records (STRs) note several complaints regarding sleep apnea or sleep-related issues during his active service. On May 13, 2011 the Veteran reported he needs to eliminate his snoring if possible as his wife will no longer sleep with him. See STR- Medical. On April 12, 2011 the Veteran reported poor sleep and sleep disturbances. On April 8, 2011 the Veteran reported that he has difficulty sleeping and has been taking Lunesta but alternating with OTC sleep aids. On April 5, 2011 the Veteran reported difficulty sleeping. On February 17, 2011 the Veteran reported difficulty falling or staying asleep. Id. On January 20, 2011 the Veteran reported sleep interruption from nightmares, daytime drowsiness and the notes indicate an evaluation for the possibility of sleep apnea. The Veteran’s service treatment records note he participated in a relaxation/sleep group in order to learn effective stress management strategies to improve his sleep patterns. On January 6, 2010 the Veteran reported difficulty with sleep onset and interrupted sleep. Id. While on active duty, in May 2011 the Veteran underwent a sleep study, however the Board notes the results of this particular study are not included in the file. In addition, an August 2014 statement from a fellow service member- the Veteran’s Lieutenant in service, notes that he was deployed with the Veteran from January 2007 to March 2008. He states that on many occasions they would have to wake up the Veteran because of his intense and loud snoring. He further states that on several of those occasions they woke him up out of concern because he was gasping for air, and other times they woke him up to stop snoring because they feared his snoring would alert locals to their presence and compromise their mission. (Continued on the next page)   The Veteran’s wife also provided a September 2014 statement stating that prior to the Veteran’s third combat deployment, he did not have any sleep apnea symptoms. She states the Veteran did not snore and he never awoke gasping for air. In addition, she notes that the Veteran reported that he was admitted into Walter Reed Army Medical Center in January 2010 and was going to have his sleep condition addressed. She states that upon receiving the results of his sleep study, he was told that the results were inconclusive because of his problems with the sleep medication they had prescribed him for the sleep study. She further notes that once the Veteran was prescribed a CPAP machine, his sleep improved tremendously. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record is at least in relative equipoise in finding that the Veteran’s current obstructive sleep apnea had its onset in service. In March 2013 the Veteran underwent a VA sleep apnea disability benefits questionnaire, where the examiner noted a diagnosis of sleep apnea from September 2012, however the examiner opined the Veteran’s obstructive sleep apnea is less likely than not incurred in or caused by the claimed in service injury, event, or illness. This was based on the Veteran’s report of additional symptoms after service (a type of headache and increased daytime drowsiness) prompting the Veteran’s request for another sleep study post service. In addition, since the Veteran’s discharge medical evaluation board referenced a negative sleep study in service, (although the actual report is not in the record), the VA examiner understood the Veteran’s in-service complaints to have been appropriately evaluated and demonstrated not to be sleep apnea. The examiner, however, did not discuss any of the Veteran’s complaints noted in his service treatment records; and without the actual in-service sleep study report, it is not certain the symptoms thought to be new, were in fact new. Likewise, it was not made clear why the addition of headaches, and increased daytime drowsiness in the context of symptoms that already included daytime drowsiness, and others that prompted an in-service sleep study, did not simply demonstrate that the in-service complaints was the early phase of this Veteran’s subsequently diagnosed sleep apnea. The Board notes service connection may 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). Therefore, based on the competent and credible medical records and lay statements from the Veteran, a fellow service member, and his wife, the Board finds the evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.