Citation Nr: 21014431 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-35 598 DATE: March 12, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least in relative equipoise that the Veteran’s obstructive sleep apnea had in-service onset. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1977 to January 1997. This case comes on appeal of an August 2012 rating decision and the Veteran testified before the Board in February 2019. This matter has previously been before the Board several times and has been remanded for development, to include multiple attempts to obtain an adequate medical opinion. As the outcome of this decision is fully favorable, the Board finds that any remaining due process deficiencies are not prejudicial to the Veteran. 1. Entitlement to service connection for sleep apnea Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran underwent a sleep study in November 2001 that diagnosed severe obstructive sleep apnea and subsequent sleep studies have confirmed this diagnosis. Therefore, the first requirement for service connection is met. At issue is whether the disability was caused by or had its onset in service. Service treatment records demonstrate that the Veteran reported complaints of frequent trouble sleeping in April 1995 and on his retirement physical in January 1997. No diagnosis was associated with these complaints. The Veteran has undergone three VA examinations to address the open question of etiology of sleep apnea. In the first, in June 2014, the examiner identified the date of diagnosis of sleep apnea as 2009. In doing so, the examiner referred to a pulmonary consultation dated April 1, 2013, which stated the Veteran was diagnosed with “severe degree of sleep disordered breathing” in 2009. The examiner also identified a titration study done in 2014 which continued to demonstrate sleep apnea symptoms, even using the prescribed CPAP machine. At that 2014 study, recent weight gain was described, and the Veteran’s weight was noted as being up to 337 pounds. The examiner opined that it was less likely than not that sleep apnea was caused by or incurred in service. By way of rationale, the examiner stated that, although the Veteran complained of sleep problems during service, no consideration was given to obstructive sleep apnea at the time. The examiner then stated that medical literature asserts that there is an association between increasing age and the incidence of obstructive sleep apnea, and that, “in 2009 when he was diagnosed with OSA, he would have been 53 years old.” Due to deficiencies with the June 2014 opinion, the Veteran underwent a new VA examination in January 2020. There, the examiner opined that the Veteran’s obstructive sleep apnea was less likely than not due to obstructive sleep apnea during service and more likely a result of the Veteran’s morbid obesity. By way of rationale, the examiner cited to a medical treatise stating that, in adults, the most common cause of obstructive sleep apnea was excess weight and obesity. The examiner then stated that, prior to the Veteran’s retirement physical examination, there were no documented clinic visits for evaluation of sleep problems during military service, and that there was a 32-year gap before the Veteran was evaluated for sleep apnea after separation from service. As the Board noted significant errors in the January 2020 examiner’s opinion, the Board once again remanded the claim for a new examination. The Veteran then underwent another VA examination in October 2020. At that time, the examiner opined that it was less likely than not that the Veteran’s current obstructive sleep apnea was related to military service. By way of rationale, the examiner explained that obstructive sleep apnea could only be diagnosed with a sleep study and there were no records showing a sleep study was performed during the Veteran’s active service; instead, the Veteran was first diagnosed with obstructive sleep apnea in 2001, four years after service. In support of his claim, the Veteran provided his own testimony at his Board hearing regarding a long history of problem snoring and daytime sleepiness, as well as two lay statements from people who observed the Veteran while he was on active duty service. The first statement the Veteran submitted was from T.P., who had served with the Veteran. T.P. stated that he witnessed the Veteran beginning in 1995 and that the Veteran could take “power naps” at any time or location, almost at will. T.P. distinctly remembered the Veteran’s loud snoring and a gasping sound he would make before falling back to sleep. Near the end of their exercise together, T.P. noted that the Veteran would sleep in a vehicle so as not to disturb the others in his unit. The Veteran also provided a statement from R.R., who knew the Veteran outside of service. R.R. reported observing the Veteran during card game tournaments. R.R. stated that the tournaments would usually last about six hours and, between rounds, the Veteran would always need to take naps. While napping, the Veteran would gasp for air to the extent that people would go over to him to see if he needed help. The Board first notes that none of the VA examiners’ opinions is adequate for adjudication on its own. As has been observed in previous Board decisions, the June 2014 examiner incorrectly identified the date of onset of the Veteran’s obstructive sleep apnea as 2009 rather than 2001. Given that the examiner attributed the Veteran’s obstructive sleep apnea to an increased risk associated with a significant increase in age, the Board cannot accept the opinion as based on adequate information. The January 2020 examiner stated that there were no documented clinic visits for evaluation or treatment of sleep problems during military service and that there was a 32-year gap before the Veteran was evaluated for sleep apnea after separation from service. The examiner’s first assertion ignored the Veteran’s being seen in April 1995 for sleep issues, as well as a June 1987 service treatment record reflecting sleep problems. Moreover, the statement that there was a 32-year gap before the Veteran was evaluated for sleep apnea after separation is so inaccurate as to question whether the examiner was reviewing the proper claims file. Finally, the October 2020 examiner’s opinion implies that the Veteran could not have had a disability during service unless it was diagnosed with the proper diagnostic tool. A sleep study is not shown to be a component of a typical military physical examination, as seen in examination reports. The mere fact that such a study was not performed cannot be considered evidence of the lack of a disability, without further exposition. Rather, such could speak to a lack of information preventing more than a speculative opinion on the matter, but that is not what was expressed by the October 2020 examiner. Moreover, the Veteran testified at his Board hearing that, at the time of his retirement examination, discussion of his sleep issues was cursory, with no follow-up questions after his complaints. The Board adds that, in providing this opinion, the examiner also failed to address the competent lay statement from T.P. regarding observation of the Veteran’s symptoms. However, in light of medical information provided by these medical opinions, as well as the medical evidence of record, the Board resolves all reasonable doubt in the Veteran’s favor to find an in-service onset of obstructive sleep apnea. First, the Board notes that there are multiple, competent lay statements regarding observation of the Veteran’s daytime hypersomnolence, as well as loud snoring and gasping for air. The June 2014 examiner pointed to the absence of complaints of these symptoms in the Veteran’s service treatment records as evidence of a lack of in-service onset, but it is apparent that the Veteran did, in fact, exhibit these symptoms. Second, based on the opinions of the June 2014 and January 2020 examiners, the Board takes note of two common causes of obstructive sleep apnea: excess weight and increased age. Here, the Board observes that at the time of his January 1997 retirement physical, the Veteran’s height and weight were recorded as 71 inches and 260 pounds. Although the Board makes no medical findings of its own, the Centers for Disease Control Body Mass Index (BMI) Calculator shows that these measurements represent a BMI of 36.3, which is considered to be in the obese category. See Adult BMI Calculator, https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator/bmi_calculator.html, accessed March 10, 2021. Furthermore, although there is no indication of the Veteran’s weight at the time of his November 2001 sleep study, in the 2014 titration study referenced above, the report stated that the Veteran’s weight of 337 pounds at that time represented recent weight gain. Additionally, the Veteran’s formal diagnosis of obstructive sleep apnea in 2001 occurred only four years after his separation from service. Thus, of the identified risk factors for sleep apnea, the Veteran exhibited one of those risk factors—excess weight—during service. The Veteran did not exhibit the other of those risk factors—advanced age relative to service—at the time of his sleep apnea diagnosis. In light of these facts, and the medical information provided by the VA examiners, the Board finds it reasonable that the Veteran’s obstructive sleep apnea is etiologically related to his excess weight. The Veteran’s weight during service was in the obese range, and there are competent lay statements demonstrating observation of symptoms of sleep apnea during service. Given this evidence, in combination with the lack of an adequate medical opinion to the contrary, the Board resolves all reasonable doubt in the Veteran’s favor to find that obstructive sleep apnea had an in-service onset. Accordingly, service connection for obstructive sleep apnea is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.