Citation Nr: 21015860 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-40 041 DATE: March 18, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his obstructive sleep apnea is at least as likely as not related to service. 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 on active duty in the U.S. Marine Corps from June 1969 to November 1977. This appeal arises from an April 2013 rating decision, denying service connection for sleep apnea. The Veteran and his spouse testified at a Board hearing at the RO (Travel Board) in September 2016, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In August 2018, and again in November 2020, the Board remanded the sleep apnea issue to the AOJ for additional development and consideration. 1. Service connection for sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may 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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has a current obstructive sleep apnea disability, as diagnosed on a July 2019 private sleep study, by Dr. M.R., a private sleep disorders physician. See also March 2020 VA examiner’s diagnosis of obstructive sleep apnea. The service treatment records are silent for indication of sleep apnea. However, the Veteran and his wife reported that since the time of his service, beginning in the early 1970s, he had sleep troubles, such as gasping for air and not breathing at night, so that his wife would have to shake him awake. See Board hearing transcript; and December 2012 Veteran’s wife’s statement. Overall, the Board finds the Veteran’s and his wife’s lay statements of in-service sleep problems are considered competent and credible. 38 C.F.R. § 3.159 (a)(2); See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection); and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Consequently, the determinative issue is whether the current sleep apnea disability is attributable to military service. Shedden, 381 F.3d 1163. In this case, there are conflicting medical opinions, as the claims file contains both negative and positive medical nexus opinions. Initially, the August 2015 VA examiner provided a negative nexus opinion that it is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. Problematically, the August 2015 VA examiner’s reasoning indicated that a documented diagnosis of obstructive sleep apnea was necessary to relate his sleep apnea to service. The examiner’s rationale included, in this regard, that “…the complaint of snoring and apnea or other symptoms that may be associated with obstructive sleep apnea during military service is not sufficient and not diagnostic of sleep apnea.” The Board finds the opinion improperly discounted the lay evidence absent contemporaneous medical evidence. See Buchanan, 451 F.3d at 1331; see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding that where a veteran has provided lay testimony of an in-service injury or event, and that lay testimony has not been rejected, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). So, the Board assigns limited probative value to the August 2015 VA examiner’s opinion. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the Board observes that a March 2020 VA examiner provided a negative nexus opinion that was deficient in only considering whether his current sleep apnea was related to a documented in-service chemical exposure to a bleach-Drano mixture in December 1971. The examiner’s opinion was inadequate in not addressing the possibility his sleep apnea might otherwise be linked to service, aside from chemical exposure. Id. Thus, the Board accords limited probative value to the March 2020 negative nexus opinion. On remand by the Board, the March 2020 VA examiner provided a positive nexus opinion in an addendum opinion in December 2020, in support of the notion that sleep apnea is directly related to service. The VA examiner reasoned, “After review of all available medical records and in office exam, there is sufficient evidence to support a condition of sleep apnea. Medical records, including letter of support from spouse, shows subjective evidence of symptoms consistent with sleep apnea during military service. Therefore, the claimed condition is at least as likely as not incurred in or caused by the claimed inservice injury, event, or illness.” The Board finds the December 2020 medical opinion is probative support of the claim as the rationale was based on a thorough rationale and review of the Veteran’s pertinent medical and service history. See Nieves-Rodriguez, 22 Vet. App. at 295. Given the aforementioned, no additional consideration is needed, including the Veteran’s additional contention that his sleep apnea is due to presumed in-service Camp Lejeune contaminated water (CLCW) exposure. 38 C.F.R.§ 3.307 (a)(7). The Board resolves all reasonable doubt in favor of the Veteran and finds that the evidence is at least in equipoise. As such, service connection for the Veteran’s sleep apnea is warranted. The appeal is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.