Citation Nr: 21021293 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 09-27 667A DATE: April 12, 2021 ORDER Entitlement to service connection for a sleep disability, claimed as mixed sleep apnea, is granted. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his mixed sleep apnea began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for mixed sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to July 1983 and from March 2003 to June 2005, with service in Iraq and Kuwait during the Gulf War Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA). This case was remanded in August 2013, June 2016, April 2017, August 2017, and June 2020 for further development. In November 2012, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. Entitlement to service connection for a sleep disability, to include sleep apnea. Under the relevant laws and regulations, 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, 1131. Generally, 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran is diagnosed with mixed sleep apnea, with components of both central sleep apnea and obstructive sleep apnea. See August 2020 VA examination. During his second period of service, he was noted to have gained weight while he was in Iraq and had “some symptoms concerning for [obstructive sleep apnea].” See June 2004 service treatment record (STR). Thereafter, within a month after his discharge from service, he was once again noted to have endorsed symptoms consistent with sleep apnea and his physician referred him for a sleep study. See July 2005 medical record. The Veteran was first formally diagnosed with sleep apnea in September 2016, but he reported continuous problems with breathing during sleep and snoring since 2003. See September 2016 VA examination. The Veteran is competent to report on his sleep difficulties and the Board finds his report credible. Thus, his report regarding continuous symptoms is afforded significant probative weight. This case was remanded several times due to inadequacies in the obtained medical opinions. Most recently, an August 2020 VA examination and opinion were provided with addendum October 2020 opinion. While the August 2020 VA examiner opined that the Veteran’s sleep apnea was less likely than not related to service, the opinion is inadequate because it relies on the absence of evidence and did not discuss the favorable evidence in STRs and shortly after service. The Board finds that the October 2020 addendum opinion does not resolve the inadequacies found in the August 2020 opinion. Thus, the opinions are given little probative weight. (Continued on the next page)   As the Veteran was noted to have symptoms consistent with sleep apnea in service, and shortly following separation from service, and continues to be treated for the same issue, after weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has mixed sleep apnea that began in active service and service connection is warranted. A. M. Clark Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.