Citation Nr: 21014550 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-01 003 DATE: March 15, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran’s diagnosed sleep apnea disability is at least as likely as not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for sleep apnea have been 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 in the United States Army from June 1975 to June 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). Service Connection—Legal Criteria Establishing 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Sleep Apnea The Veteran contends that his sleep apnea began while he was in active service and has continued into the present time. The Veteran has a formal diagnosis of obstructive sleep apnea in his private treatment records. See September 2014 Polysomnogram results. As such, the Veteran meets the current diagnosis requirement. Initially, the Board notes that the Veteran’s service treatment records (STRs) contain no complaints, treatment, or diagnosis of sleep apnea. However, the Board notes that there are multiple complaints of fatigue and poor sleep. Specifically, the Board notes a June 1997 treatment note indicating the Veteran had not been sleeping well, a 1999 treatment record which noted that the Veteran has been easily fatigable for the past two years, a January 1999 treatment note indicating the need for the Veteran to undergo a sleep study, a March 1999 treatment note scheduling the Veteran for a sleep study while indicating he experienced nighttime snoring and daytime somnolence, and the Veteran’s separation examination where he marked easy fatigability as part of his medical history. The Veteran submitted a private March 2015 Disability Benefits Questionnaire. The private examiner diagnosed the Veteran with obstructive sleep apnea and indicated that he underwent CPAP therapy for the condition. Further, the private examiner noted that due to the Veteran’s sleep apnea he experiences persistent daytime hypersomnolence, fatigue, and problems sleeping. The Veteran additionally submitted private treatment records which included his September 2014 sleep study diagnosing him with severe obstructive sleep apnea, and a March 2015 treatment note which indicated the Veteran was initially diagnosed with sleep apnea in 1999 but never followed up with his doctors. The Veteran was then provided with a June 2015 Acceptable Clinical Evidence (ACE) review regarding his sleep apnea disability. The reviewer stated that the Veteran was recommended for a sleep study in service but did not comply. She further opined that the Veteran was not diagnosed with sleep apnea in service and that his current sleep apnea is due to advancing age and being overweight. The Board notes that the reviewer did not meet with, or interview, the Veteran as part of her opinion, and did not discuss any of the Veteran’s competent lay statements. As such, the Board affords the June 2015 reviewer’s opinion little weight. In his July 2015 notice of disagreement the Veteran stated that in the March to July 1999 time frame he did comply with the request to get a sleep study at the Ireland Army Community Hospital, but he was never informed of the results and has been unable to obtain them. The Board notes that the RO also attempted to obtain records from the Ireland Army Community Hospital from this timeframe but was unable to locate the Veteran’s records. In his December 2016 VA Form 9 the Veteran described going in for his sleep study in 1999, however, he noted that he did not follow up because he was in the middle of retiring and starting a new job. Further, at his March 2021 Board hearing, the Veteran testified about the symptoms he experienced while in service. Additionally, the Veteran’s wife testified at the Board hearing. She noted that she has known the Veteran for 44 years and noticed that his sleeping patterns worsened after his deployment to the middle east in the early 1990s. Specifically, she testified that she would witness the Veteran snoring loudly and that he would stop breathing multiple times a night; to the point where she would have to wake him up to start his breathing again. The Board has considered the Veteran’s lay statements, and the statements of his spouse, in support of his claim. They are competent to report symptoms, what they directly observed, and what others have told them because this requires only personal knowledge as it comes to them through their senses. Layno 6 Vet. App. at 469. However, they are not competent to offer an opinion as to the etiology of the Veteran’s current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. The Veteran, and his spouse, testified as to his symptoms while in active duty service, including gasping for breath while sleeping and snoring. The Board finds the above testimony to be both competent and highly credible. The Board notes, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. at 496. As noted, the Veteran has offered competent and credible evidence of continuity of symptomatology. Further, the Board notes that the Veteran’s private treatment records indicate that he was diagnosed with sleep apnea in 1999, and the Veteran’s STRs contain complaints consistent with the Veteran’s testimony. (Continued on the next page) As the Veteran has a current diagnosis of sleep apnea and he has offered competent/credible testimony regarding his in-service symptoms with their continuation to the present; the Board finds that the Veteran’s sleep apnea is at least as likely as not etiologically related to the Veteran’s service. As such, the Veteran’s claim for service connection for sleep apnea is granted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.