Citation Nr: 21013727 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-28 318 DATE: March 10, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his sleep apnea is related to his service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1958 to March 1981. The Board thanks the Veteran for his many years of honorable service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA). In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that his sleep apnea began in service. He stated that his sleep apnea began at age 30 during service. At his Board hearing, he testified that he served as a helicopter pilot in service until his retirement in 1981, serving two tours in Vietnam. He testified that his roommates complained about his snoring while on temporary duty assignment, noting he could “shake the building.” He testified that he was diagnosed sometime in the 1980s and has had a CPAP machine since then. He did not file for disability until 2017 because he did not realize sleep apnea could be a service-connected disability. His original medical records from the 1980s are not available. The Veteran’s wife, sister, and two daughters all provided additional testimony at his Board hearing. The Veteran’s wife testified that they were married while the Veteran was in service. She recalls having to wake the Veteran up because he stopped breathing while in service and after service. The Veteran would fall asleep driving anywhere. The Veteran’s daughters testified that when they were children, they would have to shake the Veteran when he was asleep to get him to start breathing. The Veteran’s sister testified that the testimony of the Veteran’s wife and daughters was all true. The Veteran’s family members also provided lay statements prior to the hearing that are consistent with their hearing testimony. The Veteran’s oldest daughter provided a December 2017 statement that when she was growing up, she noticed her father had an irregular breathing pattern was he was sleeping, and it seemed as though his airway was obstructed or blocked during sleep. The Veteran’s wife provided a December 2017 statement that even before she lived in Hawaii with her husband in 1975, she would hear him stop breathing and snoring throughout the night. She did not know about sleep apnea, so they were unaware of what there was to do about the Veteran’s sleep breathing patterns. The Veteran’s sister provided a January 2018 statement that over the years that the Veteran was in service and visited her home, she noticed pauses in his breathing while he was sleeping. She has taken trips with the Veteran where it was again observed that the Veteran would often stop breathing in his sleep. The Board notes that the Veteran and his family members are competent to report the onset and continuity of lay-observable symptoms such as the nature of his breathing while asleep and accords their statements significant probative weight. A January 2018 letter from the Veteran’s physician notes that the Veteran has a diagnosis of obstructive sleep apnea. VA treatment records and private medical records show ongoing treatment for sleep apnea and the use of a CPAP machine. The Veteran has submitted competent and credible testimony that his sleep symptoms have been ongoing since service. His credible statements are further supported by the statements and testimony of his four family members noting sleep apnea symptoms since service. The finding that the Veteran has had sleep apnea symptoms since service is supportive of the claim overall, because it tends to show that the same symptoms that began in service were the basis for the later diagnosed sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993). Therefore, resolving reasonable doubt in the Veteran’s favor, the Board concludes that service connection for sleep apnea is warranted. 38 C.F.R. §§ 3.102, 3.303(d). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.