Citation Nr: 21014688 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-06 698A DATE: March 15, 2021 ORDER Entitlement for service-connection for sleep apnea is granted. FINDING OF FACT The evidence is approximately evenly balanced as to whether the Veteran’s current sleep apnea was incurred during her active duty service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2000 to December 2004, to include service in Southwest Asia from April 2003 to April 2004. The appeal is from a May 2013 rating decision. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. This issue was remanded by the Board in November 2019, and also in October 2020 for additional development. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge from 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). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or ‘medical nexus’ between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). Entitlement for service-connection for sleep apnea The Veteran has a current diagnosis of moderate obstructive sleep apnea. See November 2012 VA treatment records. The Veteran alleges that her sleep apnea began during her deployment in Iraq. Specifically, she contends that she was not sleeping properly and that she began having respiratory issues, to include excessive snoring. Although the Veteran’s service treatment records (STRs) are negative for any treatment or diagnoses of sleep apnea, the Veteran does not assert that she was treated for sleep apnea in service, but that she clinically complained of sleep apnea in service, and that it first manifested in service. See 2004 post-deployment health assessment. The November 2012 VA treatment record, sleep study, show significant sleep apnea resulting in a diagnosis of moderate Obstructive Sleep Apnea. A 2004 post-deployment health assessment indicates that the Veteran reported feeling tired after sleeping. This medical record states the Veteran says “yes” to having these symptoms now, and “yes” also to developing them anytime during the deployment. The January 2020 VA Contractor’s Sleep Apnea DBQ and Respiratory Conditions, DBQ stated there is no medical evidence that shows environmental exposure, non-penetrating trauma to the brain can actually cause OSA. Therefore, it is not as likely (less than 50%) that her symptoms of OSA are actually related to an event or exposure during active duty. However, on the headache opinion, the VA Contractor provides a positive opinion for headaches as related to service. In the rationale, the VA Contractor states based on the statement given by the Veteran on May 13, 2013, she has had OSA and HA since 2003. In his opinion, it is likely that she had poorly controlled OSA during service, which has caused her symptoms of headaches, as headaches are a symptom of OSA. In a December 2020 QTC medical opinion, the examiner opined that it was less likely than not that sleep apnea began in service or was the result of any in-service disease, injury, or event. In regard to the 2004 post-deployment health assessment the examiner stated claimant had just returned from deployment in 2004 and had sleeping difficulties, which is not unheard of post deployment. However, she never complained of sleep issue again until May 2011. The examiner reasoned that there are no obstructive sleep apnea related complaints in the STRs, and the Veteran has had substantial weight gain since separation. The examiner noted that weight gain is one of the strongest factors for developing obstructive sleep apnea. The examiner concluded that based on the Veteran’s weight gain, length of time between separation and diagnosis, as well as lack of documentation of symptoms in her STRs, it is less likely than not that the Veteran’s obstructive sleep apnea was incurred during service. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 6970 (1993). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Having considered the evidence, the Board finds that it is at least as likely as not that the currently diagnosed obstructive sleep apnea had its initial onset during active duty service. The December 2020 QTC medical opinion is opposed to this conclusion, but the Board finds that the contrary opinion of the January 2020 VA Contractor’s Sleep Apnea DBQ and Respiratory Conditions, DBQ deserve at least similar probative weight. The December 2020 QTC medical opinion is undermined to some extent by its focus on the length of time between separation and diagnosis as well as lack of documentation of symptoms in the Veteran’s STRs. The January 2020 VA Contractor’s statements that based on the statement given by the Veteran on May 13, 2013, she has had OSA and HA since 2003, and in his opinion, it is likely that she had poorly controlled OSA during service, which has caused her symptoms of headaches, as headaches are a symptom of OSA, together with the 2004 post-deployment health assessment indicates that the Veteran reported still feeling tired after sleeping, supports the conclusion that she began to develop or had sleep apnea long before she sought treatment and obtained a clinical diagnosis. Additionally, the January 2020 VA Contractor noted a review of the Veteran’s STRs and post-service medical records as well as a discussion of all relevant medical history with the Veteran during a personal examination. The VA Contractor’s opinion and rationale are clear and consistent with the evidence available.   In sum, the Board concludes that the medical evidence is at least in equipoise as to whether the Veteran’s sleep apnea had its onset during her active duty service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.