Citation Nr: 21013717 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-25 370 DATE: March 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran’s OSA is reasonably shown to have had its onset in service, and persisted since. CONCLUSION OF LAW The criteria to establish 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 on active duty from September 1980 to July 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2017 rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in March 2021. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). With regard to the first element of service connection, it is not in dispute that the Veteran has OSA because private treatment records show he underwent a sleep study and was diagnosed with OSA in November 2013. See also September 2017 VA sleep apnea examination report noting diagnosis of OSA in November 2013. What remains necessary to substantiate the claim is competent evidence that his current OSA is etiologically related to his service. The Veteran’s service treatment records (STRs) are incomplete. See, e.g., January 2002 statement from the Veteran indicating that records from his early career, from 1980 to 1984, were lost while stationed at Maxwell AFB. See also April 1984 STR in connection with treatment for hypertension noting the Veteran’s records were lost. When records under the control of the Government are unavailable, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider applying the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran’s medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by showing he has the claimed disorder and suggesting there is a correlation (“nexus”) between a claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). Here, notably, as the Veteran has not contended that he sought treatment or complained of OSA in service, the absence of the STRs is not material to resolution of his appeal. However, he has submitted a statement from his spouse and fellow service member describing his sleep impairment while in service. Specifically, in a January 2017 statement, the Veteran’s spouse and fellow service member recalled that, since getting married in May 1993, she noticed the Veteran’s “irregular patterns of snoring where he would stop suddenly, and then what seemed like minutes later, he would start again with a big gasping breath.” She also recalled the Veteran had scheduled a sleep study during service in 1998; however, “his work got in the way and it was cancelled” and he did not make another appointment until 2013, when he underwent sleep study and a diagnosis of sleep apnea was confirmed. Notably, the Veteran’s spouse stated that both she and the Veteran were medics throughout their military careers and both obtained state of Alaska nursing licenses after retiring in 2002 (and the Veteran’s medical background is recognized in his DD Form 214, Certificate of Release or Discharge from Active Duty.) See also June 2017 VA Form 21-0958, Notice of Disagreement, and attached statement from the Veteran recalling he was treated for “unexplained” hypertension during service; however, his later diagnosed sleep apnea may have been at the root of his problem. In addition, an April 2017 Hypertension Disability Benefits Questionnaire (DBQ) includes the opinion that “[t]here is good evidence, reports of the Veteran, and a formal letter from his wife that there were many significant symptoms of OSA for many years during active service. When first diagnosed with hypertension, it was quite severe with readings of 160 and above systolic and 90-100 diastolic. The Veteran reports that after CPAP treatment began, the high blood pressure persisted, however, the reading numbers were reduced and easier to control with medications.” With the information available at the time of examination, the examiner opined that the “Veteran’s OSA was active during active service and was in part causing his hypertension.” Similarly, a September 2017 VA sleep apnea examination report includes the opinion that, while it is less likely than not that his OSA is the result of his service-connected hypertension, “given the Veteran’s statement and his wife’s statement, the Veteran should have been considered for Sleep Apnea studies at the time of his hypertension evaluations. If the Veteran has sleep apnea, this condition should be considered as a Direct Service Connection Disability.” The examiner referred to medical literature finding that OSA “is a recognized cause of secondary hypertension” because “OSA episodes produce surges in systolic and diastolic pressure that keep mean blood pressure levels elevated at night.” The Board finds probative (and persuasive) the April 2017 and May 2017 VA opinions that the Veteran’s OSA was present during service. These opinions reflect familiarity with the record and include rationale that cites to accurate factual data and medical literature. These opinions, combined with the competent and credible statements from the Veteran and his spouse (who is also a fellow service member and registered nurse), support the conclusion that the Veteran’s OSA initially manifested in service and has persisted. Resolving reasonable doubt in the Veteran’s favor, as required (38 C.F.R. § 3.102),   the Board finds that the competent evidence reasonably establishes that the Veteran’s OSA is etiologically related to service. Accordingly, service connection for OSA is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.