Citation Nr: 21014653 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-20 470 DATE: March 15, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence is in equipoise regarding whether obstructive sleep apnea was incurred in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to October 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2018, the Veteran appeared at a hearing before a Veterans Law Judge who is no longer a member of the Board. A copy of the hearing transcript is of record. In July 2019, the Board denied entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, to include secondary to service- connected migraine and/or cluster headaches. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In May 2020, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Remand and vacated the July 2019 decision of the Board of Veterans’ Appeals (Board) to the extent that it denied service connection for a sleep disorder, and remanded that issue to the Board for additional action. 1. Entitlement to service connection for obstructive sleep apnea. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.30. To establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§ 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran is seeking service connection for obstructive sleep apnea. The Veteran contends that currently diagnosed sleep apnea began during service and continues to the present. In a May 2020 Joint Motion for Remand, the parties agreed that the June 2016 VA examination, on which the Board’s July 2019 decision was predicated, was inadequate. Therefore, the parties agreed that remand was required to obtain a new or addendum opinion to address the listed concerns. However, prior to reactivation at the Board, the Veteran provided a private sleep examination from October 2020. Resolving all reasonable doubt in favor of the Veteran, the Board finds that remand for further VA examination and opinion is no longer necessary. A review of the service medical records does not show any complaints, findings, treatment, or diagnosis of any sleep disorder, to include sleep apnea, during service. The service medical records show that the Veteran received medical attention for what was identified as migraine or cluster headache, and that he was barred temporarily from flying because of the disorder. The service medical records show that the Veteran underwent a magnetic resonance imaging (MRI) study of the brain to investigate eye pain and headaches, which proved normal. In December 2013, the Veteran underwent a sleep study which confirmed a diagnosis of mild obstructive sleep apnea and hypopnea. In support of the claim, in addition to numerous written statements, the Veteran has provided a private October 2020 sleep evaluation. In the private October 2020 examination, after review of the medical record, lay statements, ancillary information regarding the Veteran, and clinical interview, in an extensive, detailed report, the examiner, a physician who specializes in otolaryngology and sleep medicine, opined that it is more likely than not that the Veteran’s obstructive sleep apnea was present during service. The examiner based that opinion on the Veteran’s history and lay statements, peer-reviewed medical literature, first-hand clinical experience, and the generally recognized nature of obstructive sleep apnea as a chronic disease which slowly progress along a continuum from snoring to the development of potentially fatal medical co-morbidities. The Board assigns great probative value to the October 2020 private medical opinion because of the training, experience, and thoroughness of the examiner. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The October 2020 private opinion was made after a review of the record, was consistent with the evidence in the case, and provided adequate reasons and bases in support of the conclusion. The October 2020 physician opined that the Veteran met the diagnostic criteria for obstructive sleep apnea which, in the examiner’s opinion, began during active duty service and continues to the present. The opinion of the October 2020 private physician is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The private physician specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. Thus, the Board finds the October 2020 private medical opinion to be competent and credible. (Continued on the next page)   The Board acknowledges that there may be contradictory evidence of record. However, the Board cannot ignore the medical evidence finding that obstructive sleep apnea began during active service. Because of the detail and thoroughness of the October 2020 private opinion, the Board finds that the evidence is, at least, in equipoise regarding whether current obstructive sleep apnea is related to service. Accordingly, based on the foregoing, and resolving doubt in the Veteran’s favor, the Board finds the competent medical evidence supports a finding that obstructive sleep apnea began during and is etiologically related to active service. Therefore, service connection for a sleep disorder, to include obstructive sleep apnea, is warranted. Accordingly, service connection for obstructive sleep apnea is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.