Citation Nr: 21015090 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-63 510 DATE: March 16, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran’s OSA had its onset while he was on active duty. CONCLUSION OF LAW The criteria for service connection for sleep apnea are 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 in the United States Air Force and the United States Air Force Reserve. The Veteran was on active duty from August 1984 to May 1992, May 1996 to April 1997, July 2001 to February 2002, December 2004 to June 2007, June 2008 to September 2008, June 2009 to August 2009, February 2010 to May 2010, and from October 2010 to March 2011. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) August 2016 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans’ Law Judge in an August 2020 Board virtual hearing. A transcript of the hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to service connection for obstructive sleep apnea The Veteran claims that his OSA had its onset while he was on active duty. 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, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve any reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that in several instances throughout the course of appeal the Veteran advances the argument that his OSA is secondary to his service-connected posttraumatic stress disorder (PTSD). While it is possible that is the case, as discussed below there is sufficient probative evidence to find that the Veteran’s OSA is directly caused by, or had its onset in, his active duty service. Therefore, analysis of whether or not his OSA is secondary to his PTSD is unnecessary, and the Board makes no finding on whether the two conditions are connected. The Veteran has a current diagnosis of OSA, fulfilling the first Shedden requirement necessary for service connection. The Veteran’s service treatment records (STRs) do not contain any records of complaints of, or treatment sought for, OSA or other sleeping issues. However, in June 2016 the Veteran submitted a statement from D.W., a serviceman who served with the Veteran for “over 8 years” in close proximity as a fellow flight crew member. According to Mr. W., while their unit was deployed to Southwest Asia in 2004, “at this time while sleeping in tents and thin walled shelters” Mr. W. noticed the Veteran snoring, which progressively worsened. Mr. W. also noted that the Veteran was not simply “snoring” but was also choking and at times “gagging” while sleeping. Mr. W. stated further that many times he told the Veteran to go to his doctor because of the choking and gasping during his sleep but the Veteran did not want to seek medical care in fear that he would be put in a “non-flying status (DNF)”. At his August 2016 Board hearing, the Veteran stated it was while he was on active duty that he began having problems sleeping and developed “some odd sleep patterns.” The frequency and volume of the Veteran’s snoring, choking, and gasping while sleeping, combined with the fatigue felt by the Veteran, are symptoms D.W. and the Veteran can attest to as laypeople. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the second Shedden element necessary to establish service connection has been met. Turning to the issue of a link, or nexus, between his current OSA diagnosis and in-service sleep issues, the Board notes that in July 2016 the Veteran was seen for a VA examination to determine the etiology of his sleep condition. The examiner concluded that “it is less likely as not” that the Veteran “exhibited the signs/symptoms, was evaluated, diagnosed, or treated for sleep apnea while inservice[sic].” The examiner found that a more likely cause of the condition was the fact that the Veteran was male and “overweight.” Continuing, the examiner noted, without any explanation or rationale, that the Veteran’s PTSD “is not causal/aggravate[sic] of sleep apnea.” The Board finds that the July 2016 VA examination is problematic for several reasons. Some of the examiner’s statements are conclusory, such as his finding that the Veteran was “overweight.” A review of the Veteran’s medical records does not show it to have been an issue leading up to the examination, nor was it a documented issue at the time. The examiner did not explain how they came to their conclusion. The examiner then questioned the efficacy of the sleep study that was used to initially diagnose the Veteran’s OSA, stating that the type of sleep study is “poor quality” and “unreliable” but did not explain why that is the case. Continuing, the examiner commented that “there is no way to determine if the sleep study results are those of the [V]eteran.” Finally, the examiner’s opinion is based on an inaccurate recreation of the facts. The examiner noted that the Veteran did not display any “signs” or “symptoms” of sleep issues while on active duty, yet did not address the Veteran’s own assertions or Mr. W.’s statement in support of the Veteran. As the July 2016 VA examiner did not accurately interpret the facts of the case, made conclusory statements, and made some incorrect eligibility determinations, the Board finds that the examiner’s conclusion has little probative value in adjudicating the Veteran’s claim. In February 2016, a VA sleep medicine diagnostic study report includes a diagnosis of obstructive sleep apnea. In March 2018, the Veteran underwent a private sleep study at which time he was diagnosed as having severe obstructive sleep apnea. At his August 2020 Board hearing the Veteran testified that he was not “aware” of his snoring until his fellow crew members pointed out that he was snoring and would “stop breathing” during sleep. The Veteran did not present himself to the flight surgeon as it could “end [his] flying career.” Instead, the Veteran “pushed through it” even though he would only sleep “two hours, three hours, and get up.” As briefly discussed above, the Veteran’s statements are corroborated by the June 2016 statement from Mr. W. Echoing the Veteran’s hearing testimony, initially the flight crew would “joke” about the Veteran’s snoring, until it became clear it was “a real health concern.” The Veteran’s snoring was so bad that it made it difficult for Mr. W. and other members of the flight crew to sleep. As noted, Mr. W. suggested many times that the Veteran seek medical care, but the Veteran did not out of fear of being put in a non-flying status. In October 2020 the Veteran submitted a statement from T.L., M.D., a VA physician who is the Veteran’s primary care provider. According to Dr. L., based on a review of the “pertinent parts of [the Veteran’s] medical record that document his clinical conditions,” it is his opinion that “it is more likely than not that [sleep apnea] was developed during the Veteran’s military service.” The Board finds that the Veteran’s testimony regarding the onset of his snoring, combined with Mr. W.’s statements regarding the onset, frequency, and severity of the snoring along with witnessing episodes where the Veteran would cease breathing, and with Dr. L.’s October 2020 medical opinion that the Veteran’s OSA “developed during the Veteran’s military service,” are of more probative value than the July 2016 VA examination findings. The Board is not bound by the medical determination of a VA examination. Hayes v. Brown, 5 Vet. App. 60 (1993). Furthermore, the Board is entitled to favor one (or more) medical opinion over others. D’Aries v. Peake, 22 Vet. App. 97 (2008). (Continued on the next page)   The Board finds that the criteria for establishing service connection for obstructive sleep apnea have been met. Accordingly, the Board resolves all doubt in the Veteran’s favor, and service connection is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. At 54. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.