Citation Nr: 21020850 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-58 935 DATE: April 8, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s sleep apnea had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1958 to March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Previously, the Board remanded this matter for the RO to conduct additional development in an April 2018 decision. Thereafter, the Board issued a decision in March 2019 denying entitlement to service connection for sleep apnea. Subsequently, the Veteran appealed the March 2019 decision to the Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the parties entered into a Joint Motion for Remand (JMR) in January 2020. Pursuant to the terms of the JMR, the parties agreed that the Board erred in its March 2019 decision by failing to ensure VA had satisfied its duty to assist the Veteran. More specifically, the parties agreed that a November 2018 VA medical opinion on the etiology of his sleep apnea was inadequate for failing to address his complaints of obesity, tiredness, and malaise during service. Consistent with the JMR, the Court vacated the March 2019 decision and remanded the claim for further development. The matter now returns to the Board once more. This matter has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). Service Connection Generally, the Veteran alleges that he is entitled to service connection for sleep apnea because he has been suffering from the condition since he was on active duty. For instance, he asserts that others would often complain about his excessive snoring, that he would fall asleep during lectures or trainings, and that he frequently had to be awakened by his shipmates during the day. He also reports that he suffered from excessive daytime sleepiness and that he has stopped breathing during his sleep. As he has consistently stated, these symptoms have continued until the present. Although he was eventually diagnosed with sleep apnea after a December 2008 sleep study was performed, he contends that he did not know that sleep apnea existed before his sleep study was performed and that no doctors specialized in sleep apnea while he was in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1212 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of each Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of the positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. At the outset, the Board notes that the Veteran’s post-service medical treatment records reflect a current diagnosis of obstructive sleep apnea since December 2008. Accordingly, the Board will turn to the central question of whether this disability had its onset during or is otherwise etiologically related to his active service. As set forth above, the Veteran has argued that symptoms of snoring, not breathing while asleep, and daytime tiredness during service suggest that his sleep apnea had its onset during that time. A review of his contemporaneous service treatment records reflects that in November 1968, his body mass index (BMI) was 25.1, indicating that he was slightly overweight. In September 1973, he reported excessive tiredness with the least amount of exertion and was subsequently hospitalized for 38 days. He was discharged with diagnoses of gastrointestinal bleeding, secondary anemia from blood loss, and internal hemorrhoids. However, the hospital discharge summary also described him as “obese.” Four years later, he complained of feelings of general tiredness and malaise. Although he did not endorse frequent trouble sleeping at his March 1980 separation examination, his BMI at the time was 26.5, indicating that he was also overweight when he was discharged. The Veteran’s lay statements and service treatment records are bolstered by lay statements from his wife. For instance, she reported that she noticed his snoring shortly after they were married in 1968 and that it has become progressively worse over the years. She also stated that during his hospitalization in 1973, his nurses would joke about his excessive snoring. Additionally, she has seen him gasping for breath and stop breathing in his sleep completely several times. The Board has no reason to doubt the credibility of the Veteran’s wife. As such, her statements are highly probative as to the nature and continuity of the Veteran’s symptoms. The Board notes that the Veteran was afforded a November 2018 VA examination with respect to the etiology of his sleep apnea. In the corresponding examination report, the VA examiner rendered a negative nexus opinion. More specifically, the VA examiner stated that the Veteran’s sleep apnea was more likely the result of his advancing age, increasing weight between September 2007 and April 2010, and craniofacial morphology. Although the VA examiner acknowledged the Veteran’s reports of snoring during service, he also remarked that snoring was found to have no predictive value for developing sleep apnea. As set forth in the JMR, the VA examiner’s opinion is deficient for failing to discuss the Veteran’s complaints of obesity, malaise, and tiredness during service in relation to his current sleep apnea. As such, the November 2018 VA examiner’s opinion is not persuasive. On the other hand, the Veteran’s representative submitted a February 2021 private medical opinion from Dr. P.C., who rendered a positive nexus opinion. In that opinion, Dr. P.C. indicated that he had reviewed the Veteran’s current medical records, the November 2018 VA examination report, service treatment records, and lay statements from the Veteran and his wife. After summarizing the relevant evidence of record, Dr. P.C. opined that the Veteran’s sleep apnea more likely than not had initially manifested during active duty. Although the November 2018 VA examiner had opined that the Veteran’s obesity was the cause of his sleep apnea instead of his service, Dr. P.C. noted that he was found to be obese in his service treatment records. Hence, regardless of the exact mechanism by which obesity is related to sleep apnea, he was already noted to be obese at the time when his symptoms first manifested in the 1970s. Additionally, although the November 2018 VA examiner had stated that snoring was not predictive of sleep apnea, Dr. P.C. found that the VA examiner had overembellished the results of one study on sleep apnea. Moreover, the Veteran’s lay statements indicated that he had displayed other cardinal manifestations of sleep apnea besides snoring during his service, including snorting (indicating a blocked airway) and excessive daytime somnolence. As such, Dr. P.C. stated, his sleep apnea had more likely than not first manifested during service. (Continued on the next page)   When compared to the November 2018 VA examiner’s opinion, Dr. P.C.’s rationale is detailed, comprehensive, and supported by the most competent and credible evidence of record, such as the lay statements submitted by the Veteran and his wife. His private medical opinion is thus highly probative as to the etiology of his sleep apnea. Ultimately, having considered Dr. P.C.’s opinion in connection with the entire record, the Board finds that the preponderance of the evidence suggests that the Veteran’s current sleep apnea first arose during active service. The Board thus finds that the criteria for service connection for sleep apnea have been met, and the claim must be granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.