Citation Nr: 21013328 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-40 301 DATE: March 9, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The probative evidence is at least in equipoise as to whether the Veteran’s OSA manifested in service. CONCLUSION OF LAW The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from November 1984 to November 2004. Service connection for OSA The Veteran contends his OSA symptoms manifested in service. Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records (STR) are silent for complaint, treatment, or diagnosis of OSA. A February 2008 Veteran statement reported he had not slept through the night in the last 15 years. A March 2008 VA treatment visit reported abnormal sleep and poor energy levels. A February 2009 Veteran statement reported while in the military he was not able to solidly sleep through the night and would wake up every couple hours. He reported being sleepy throughout the day and struggling to stay awake during meetings. A March 2009 VA treatment visit reported feeling sleepy all the time and falling asleep in meetings. The clinician ordered a sleep study. A September 2009 sleep study assessed OSA and prescribed a continuous positive airway pressure (CPAP) machine. A November 2009 VA treatment visit noted his sleep apnea was doing much better with the CPAP. A July 2011 VA treatment visit noted the Veteran loved his CPAP and his symptoms were much improved. A September 2018 statement from the Veteran’s wife reported the Veteran’s sleep was normal prior to military service. She stated she first noticed his sleep pattern was abnormal after serving on the USS Edson, with shallow sleeping and not feeling rested when he awoke. Personnel records confirm the Veteran and his wife were married prior to his military service. An August 2019 statement from a fellow service member stated he served with the Veteran aboard the USS Champion in the 90s. He stated the Veteran had sleep apnea, sleep deprivation, and daytime sleepiness. He remembered the Veteran snoring in and out of consciousness. He stated the Veteran always seemed tired and sleep deprived. In December 2019, the Veteran’s representative submitted a medical study that found the average time between a patient’s first recognition of a symptom of OSA to sleep center referral was 87.5 months. The study suggested that both a lack of reporting of OSA symptoms and a lack of obtaining appropriate sleep history by health providers contribute to a significant delay in a diagnosis of OSA. The Board finds the probative evidence is at least in equipoise as to whether the Veteran’s OSA manifested during service. The Board gives probative weight to the Veteran’s, his wife’s, and his fellow service member’s statements describing the Veteran’s sleep behavior during service, to include snoring, apnea, waking up every couple hours, shallow sleeping, and daytime somnolence. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the sleep symptoms reported to have occurred during service are the same symptoms that caused his clinician to order a sleep study, which assessed OSA. This finding is consistent with the Veteran’s sleep symptoms being improved with a CPAP. This finding is consistent with the study provided by the Veteran’s representative suggesting there often is a significant delay between a patient having OSA symptoms and a diagnosis of OSA. The Board gives less probative weight to the August 2017 and March 2019 VA medical opinions finding the Veteran’s OSA was less likely than not incurred in or caused by service. The opinions did not sufficiently address the Veteran’s, his wife’s, and his fellow service member’s statements describing the Veteran’s sleep symptoms during service. The Board notes the Veteran alternatively contended his OSA was secondary to obesity which was secondary to his service-connected cervical, lumbar, bilateral foot, and bilateral knee disabilities. As service connection is being granted on a direct basis, there is no need to address secondary service connection. Accordingly, as the evidence is at least in equipoise, service connection for OSA is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.