Citation Nr: 21015582 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-07 403 DATE: March 17, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence demonstrates that the Veteran’s sleep apnea had its onset during active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2009 to November 2009 and from May 2011 to May 2012. This matter is on appeal from a January 2014 rating decision. By way of background, a December 2018 Board decision denied service connection for sleep apnea. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board’s decision as to the claim for service connection for sleep apnea and remanding the matter to the Board for actions consistent with the Joint Motion. In April 2020, the Board remanded this case for additional development and again remanded the case in November 2020. 1. Entitlement to service connection for sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service 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 (Fed. Cir. 2004). 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). The Veteran contends that he developed sleep apnea during military service. The service treatment records (STRs) include a September 2012 post-deployment health assessment that documents the Veteran’s report that he still felt tired after sleeping. On VA examination in June 2013, the Veteran reported that he had not been diagnosed with a history of sleep apnea, but he thought he might have it because he had difficulty sleeping and snored a lot. He stated he borrowed his brother-in-law's CPAP machine. He had not had a sleep study. At a VA examination in January 2016, the Veteran reported having had symptoms of sleeping difficulty since October 2011. His wife told him that he snored loudly and would cease breathing during sleep. Pertinent findings were persistent daytime hypersomnolence and obesity. At the time of the 2016 examination the Veteran still had not participated in a sleep study. The VA examiner was compelled to state that the sleep apnea was less likely than not related to service because there was no current diagnosis of sleep apnea. An April 2016 rating decision granted service connection for a lumbosacral strain with degenerative spinal arthritis, as well as radiculopathy of each lower extremity. An October 2016 private sleep study of the Veteran yielded a diagnosis of mild obstructive sleep apnea. A July 2020 VA sleep apnea examination was performed and an examiner opined that obstructive sleep apnea was less likely than not related service because sleep apnea was not diagnosed until October 2016. The examiner also opined that the sleep issues reported in September 2012 could not be considered sleep apnea. Pursuant to the November 2020 Board remand, the Veteran’s records were reviewed by a physician later in November 2020. The physician opined that: The record review showed the veteran clearly and unmistakably had a back injury during service. He also had shin splints which caused difficulty exercising. He was noted to [be] obese while in service and had weight gain during active duty. Obstructive sleep apnea is due to airway obstruction during relaxation of muscles in the airway in REM [Rapid Eye Movement] cycle of sleep generally in persons who are overweight. He reported difficulty sleeping both while in active duty as well as post deployment as noted on 9/22/2012. The significance of the September 2012 report by the Veteran of "trouble sleeping and still feeling tired after sleeping" is that this is a classic symptom in OSA and very likely represented the same symptomatology that was later diagnosed as sleep apnea. The veteran’s obstructive sleep apnea condition had its onset in service or is otherwise related to any incident of service including back injury with chronic back pain, shin splints and resulting weight gain. Therefore, with claimant history, MRR and current exam findings it is less likely than not that the veteran’s obstructive sleep apnea condition has been aggravated by the service-connected disabilities, to include posttraumatic stress disorder. Here, the only medical opinion as to whether sleep apnea had its onset during service, and after a sleep study yielded a diagnosis of sleep apnea, is the medical opinion rendered in November 2020. Although that opinion was based upon a review of the records, and not upon an actual examination of the Veteran, as requested in the November 2020 Board remand, the information recorded by the opining physician was accurate in relating the Veteran’s clinical history. While the opinion rendered in 2020 might at first glance be somewhat confusing in that it was stated that sleep apnea was not aggravated by his service-connected disabilities, the relevant portion of the opinion was that the Veteran’s current sleep apnea had its onset during active service because his symptomatology in September 2012 was a classic symptom of sleep apnea and, as such, most likely represented the onset of the later diagnosed sleep apnea. See generally 38 C.F.R. § 3.303(d). Accordingly, the Board finds that the service records and the Veteran’s credible statements of his clinical history demonstrate that he had sleep apnea during service; the 2016 sleep study establishes the current existence of sleep apnea; and the opinion rendered in 2020 is persuasive inasmuch as it is the only medical opinion that considered the 2016 sleep study in conjunction with his clinical history, and establishes a firm foundation for a nexus between the inservice sleep disturbance and the current sleep apnea. Thus, all three (3) elements required for a grant of service connection are established and service connection for sleep apnea is warranted. M. C. WILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.