Citation Nr: 21021400 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-41 684 DATE: April 12, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his currently diagnosed OSA had its onset during service. CONCLUSION OF LAW The criteria for service connection for OSA have been 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 from June 2005 to August 2006 and May 2010 to July 2011, with additional service in the Kentucky Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office. In October 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2019, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for OSA. The Veteran contends that his OSA had its onset during his second period of service from May 2010 to July 2011. While he has alleged, in the alternative, that such disorder is caused or aggravated by his service-connected disabilities, to include as a result of weight gain, the Board need not address such secondary theory of entitlement as service connection is awarded herein on a direct basis. In this regard, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. As an initial matter, a sleep study conducted in November 2012, approximately 16 to 17 months after the Veteran’s separation from his second period of active duty in July 2011, reflects a current diagnosis of OSA. Additionally, an April 2011 Post-Deployment Health Assessment shows the Veteran reported problems sleeping or feeling tired after sleeping, and his commanding sergeant and fellow service-member submitted statements in November 2013 and December 2013, respectively, indicating that they witnessed the Veteran snoring, gasping for air, and complaining of fatigue during the latter half of their deployment to Afghanistan from 2010 to 2011. Further, the Veteran’s spouse testified that he did not have any sleep-related issues prior to his second period of service; however, upon his return from deployment, she witnessed him gasping for breath while he slept. Moreover, although the Veteran acknowledges that physicians did not formally diagnose OSA until November 2012, he asserts that he continued to experience sleep-related symptomatology since his deployment, but he delayed seeking treatment for such symptoms due to his focus on other disabilities. With respect to a nexus between the Veteran’s current OSA and his military service, the record contains conflicting medical opinions. Specifically, in August 2013, a VA physician, M.P., found the Veteran’s OSA was most likely secondary to obesity. In this regard, she explained that the Veteran’s body mass index (BMI) was consistent with obesity, which is a common cause of OSA, and, thus it is less likely as not that the Veteran’s current OSA was incurred in or caused by dusty and dry conditions and/or smoke from a nearby incinerator during his service in Afghanistan. With respect to the Veteran’s Post-Deployment Health Assessment, noted above, Dr. M.P. found the Veteran’s reports could have been due to any number of reasons, to include anxiety, drinking too much caffeine, poor sleep habits, and lack of exercise. She also found there was no objective medical evidence of sleep apnea until November 2012, which was over one year after the Veteran’s discharge from service. In November 2014, an addendum VA opinion addressing the lay statements from the Veteran’s’ commanding sergeant, fellow servicemember, and spouse was obtained; however, as discussed in the February 2019 remand, such is essentially a non-opinion and, thus, it will not be further considered. However, a VA physician, Dr. T.P., reviewed the record and provided a favorable opinion placing the onset of the Veteran’s OSA in service in October 2019. Specifically, he opined that such disorder was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, Dr. T.P. noted the formal diagnosis of severe OSA following a sleep study conducted 17 months after the Veteran’s separation from service. He further observed that, although a primary care physician noted the diagnosis of OSA in January 2013, such diagnosis did not appear on the VA problem list until February 2017 and was added by a different primary care physician. Thus, Dr. T.P. determined the absence of a diagnosis on a problem list or in progress notes did not necessarily mean an absence of disease. He further found the Veteran may well have complained of a sleep disturbance in his initial visits to the VA Medical Center from 2011 to 2012, which may not have documented it in the progress notes. Additionally, Dr. T.P. found pertinent that, according to the weights recorded at the VA Medical Center, the Veteran weighed 225 pounds on July 20, 2011, and 230 pounds on June 5, 2012, which represented only a five pound weight gain over a one-year period, which was of no clinical significance. In fact, the Veteran’s weight was 224 pounds in November 2006 and 225 pounds five years later in July 2011, four days after his separation from service. Therefore, Dr. T.P. determined it was clear that the Veteran’s weight did not increase significantly over a six-year period prior to his sleep study. In this regard, he found it would be extremely unusual for an individual to be diagnosed with severe OSA 1.5 years after separation and to not have had the condition during service, particularly given the absence of weight gain for six years prior to the sleep study. Further, Dr. T.P. opined it was highly improbable that the Veteran’s OSA progressed from an absence of the condition at separation from service to severe OSA in just 15 months. He further determined considerable weight should be given to the reports of symptoms in service, to include the letters provided by the Veteran’s sergeant and fellow servicemember, which were highly suggestive of OSA. Thus, Dr. T.P. concluded it is at least as likely as not that the Veteran’s OSA had its genesis during military service, and direct service connection was warranted. Conversely, in December 2019, another VA physician, Dr. M.T., opined the Veteran’s OSA was less likely than not incurred during service between 2010 to 2011, based on the diagnosis of sleep apnea in November 2012, the fact his BMI was over 30 since May 2007, and the most common cause of sleep apnea was obesity, which suggested the Veteran’s current OSA was not due to active service but rather from obesity. In light of the above, the Board finds the evidence of record is at least in equipoise as to whether the Veteran’s currently diagnosed OSA had its onset in service or is otherwise related to service. Specifically, Drs. M.P., T.P., and M.T. are competent medical professionals, considered the relevant facts and accepted medical principles, and provided a rationale for their opinions. Thus, the Board resolves all doubt in the Veteran’s favor and finds that his currently diagnosed OSA had its onset in service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.