Citation Nr: 21015886 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-13 626 DATE: March 18, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his obstructive sleep apnea is etiologically attributable to his active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to June 1993. The Veteran testified at a hearing before the undersigned in April 2018. A transcript of the hearing has been associated with the claims file. The claim was most recently before the Board in June 2020 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A nocturnal polysomnogram (NPSG) test in December 2003 diagnosed the Veteran with obstructive sleep apnea. The Veteran had another NPSG test in March 2012 which confirmed his obstructive sleep apnea. The question for the Board is whether the Veteran's sleep apnea either began during active service or is etiologically related to an in-service disease or injury. Upon review of the record, the Board finds the evidence is at least in equipoise and service connection is warranted. Accordingly, after resolving all doubt in favor of the Veteran, service connection for sleep apnea is granted. 38 U.S.C. § 5107; 38C.F.R. §3.102. The Veteran's service treatment records (STRs) document the Veteran’s weight gain; he weighed 212lbs at enlistment and weighed 225lbs in January 1993 (6 months from separation). The record also includes post-service VA treatment records noting sleep apnea on the Veteran's problem list and use of a continuous positive airway pressure (CPAP) machine. See Medical Treatment Records. In a December 2014 private medical opinion, physician R. S., stated that the Veteran had sleep apnea while on active duty and his symptoms increased in severity. The private physician opined that the Veteran’s current sleep apnea is a progression of symptoms that began while on active duty. In a January 2015 statement, the Veteran's wife indicated that the Veteran would “gasp for air” while sleeping. In a February 2015 statement, the Veteran’s father indicated that the Veteran snored loudly after discharge but did not snore prior to enlistment. Buddy statements received in February 2015 from T.C.; M.L.; M.D.; and R.B. indicated that, during his active duty period, the Veteran snored loudly and would gasp for air while sleeping. The Veteran’s co-workers B.A. and R.S. also submitted statements in February 2015 that the Veteran was released from employment due to his sleep problems. At the April 2018 Board hearing, the Veteran testified that during service he had symptoms of sleep apnea including, loud snoring, gasping for air, and profound daytime sleepiness. The Veteran also noted that when he first entered active duty, he weighed 212 lbs. and then after he had significant weight gain. The Board remanded the claim several times because VA opinions were inadequate. In a January 2021 opinion obtained after the most recent remand, the examiner opined that the Veteran’s obstructive sleep apnea was less likely than not caused by a claimed in-service injury, event, or illness. The examiner found that none of the Veteran’s sleep apnea symptoms implied a confirmed diagnosis of sleep apnea during service. Specifically, the examiner noted that, although the Veteran reported weight gain, sleep disturbances, poor sleep quality, sleep disordered breathing, and snoring during service, these symptoms alone cannot confirm sleep apnea. The examiner commented on the December 2014 private medical opinion also did not imply a confirmed diagnosis of sleep apnea during service. The focus of the negative January 2021 opinion was that there was no confirmed diagnosis during service and the examiner relied solely on a lack of definitive diagnostic testing during service. The question here is whether the sleep apnea diagnosed after service was related to the symptoms specifically noted during service. This examiner did not address that. Lay persons are competent to testify to matters of which they have firsthand knowledge (i.e., snoring). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran, his wife, his fellow servicemen, friends, and former co-workers’ lay statements are competent credible evidence of symptomatology beginning in-service and continuing since. Evidence in support of the claim includes the December 2014 private medical opinion that causally related the Veteran’s apnea to service. The Board also acknowledges that the Veteran’s STRs indicate his weight gain and snoring while in service. The Veteran has also submitted many buddy statements describing the effects of his sleep apnea both during and after service. Evidence against the claim includes the January 2021 VA examination’s negative opinion that the Veteran’s sleep apnea is not causally related to service. Accordingly, the evidence is at least in relative equipoise as to whether the Veteran's current sleep apnea originated during his active service. The benefit of the doubt is resolved in the Veteran's favor; service connection for sleep apnea must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.