Citation Nr: 21015338 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-30 232 DATE: March 17, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset during his active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2007 to June 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in July 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. The Veteran’s representative did not appear at the hearing and the Veteran indicated that he wished to proceed with the hearing without his representative being present. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service Connection – Sleep Apnea Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).    When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski¸ 1 Vet. App. 49 (1990).  Here, the Veteran contends that the onset of his sleep apnea symptoms, such as difficulty sleeping, waking up gasping for air, and daytime sleepiness, began during service and that they have continued since. See July 2020 Board Hearing. An October 2016 sleep study indicated a diagnosis of obstructive sleep apnea. Accordingly, the first element for service connection has been established. As to the in-service disease or injury element, the Veteran reports that, during service, he experienced symptoms of sleep apnea, such as difficulty sleeping and daytime sleepiness. In support of his claim, the Veteran’s fellow servicemember provided a statement about the Veteran’s in-service symptoms during a deployment. See February 2017 Correspondence. This servicemember, who served as a hospital corpsman, reported that, while assigned to the Veteran’s unit, the Veteran discussed his sleep issues with him which included waking frequently at night and feeling tired during the day. The servicemember stated, based on the Veteran’s reported symptoms, that he planned to recommend the Veteran for a sleep study based on his possible sleep apnea, but that he was transferred for training before he was able to refer the Veteran for follow-up. The Veteran and his fellow servicemember are competent to report factually observable occurrences in service and the timing of the observable symptoms of a disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The statement from the Veteran’s fellow servicemember, in particular, is persuasive, credible, and competent given the servicemember’s duties as a corpsman and his related medical knowledge and training. The statements from the former corpsman and the Veteran are consistent, and there is no evidence to the contrary relating to the onset of the Veteran’s sleep apnea symptoms. Therefore, the in-service disease or injury element is met. According, this case turns on the remaining element of service connection, which is whether the Veteran’s sleep apnea is related to, or had its onset in, his active duty. The Veteran was accorded a VA examination in December 2016, at which time the examiner opined that it was less likely than not that the Veteran’s sleep apnea was related to his service. (The examiner was unable to state whether the Veteran’s sleep apnea was present in service without resorting to mere speculation.) The examiner noted that the Veteran had gained weight primarily after his military service and that his current sleep apnea was related to his current weight and his body mass index (BMI). Service treatment records (STRs) reflect weight gain during service, and the Veteran reported that he initially experienced weight gain during service that had continued to worsen since. More importantly, in offering the opinion, the examiner did not appear to consider the Veteran’s reports of sleep difficulties and daytime sleepiness that began in service. Given the evidence of record, the Board finds that the Veteran’s sleep apnea onset during service and has continued since then. He reported that he began to experience symptoms of sleep apnea during service and sought advice from the corpsman attached to his unit during a deployment. While sleep apnea was not documented in the Veteran’s STRs, he did report “quite a bit” of trouble falling or staying asleep and reported taking the medication NyQuil multiple times during service. See, e.g., July 2010 and May 2011 STR Entries. The VA examination of record is not persuasive, as it failed to consider the Veteran’s competent reports of symptoms beginning in service. Rather, in relying on the Veteran’s weight gain in service, the examiner did not give any consideration to the Veteran’s weight gain since then—or how such may relate to his now diagnosed sleep apnea. The credible evidence of record establishes that the Veteran’s sleep apnea symptoms onset during service and have continued to the present. Accordingly, in resolving reasonable doubt in the Veteran’s favor, service connection for sleep apnea is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.