Citation Nr: 21021842 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-25 321 DATE: April 14, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT It is as likely as not the Veteran’s OSA started during his service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for OSA. 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 honorably in the Army from March 1982 to January 2014. The Veteran recently testified in support of this claim during a “virtual” hearing in January 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Entitlement to service connection for OSA is granted. The Veteran insist that his OSA started during his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 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 an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA treatment records show the Veteran was diagnosed with OSA in November 2014 based on the results of a sleep study, so less than a year after his separation from the Army. Moreover, his service treatment records (STRs) document a history of poor sleep and snoring during his service. He explained during his recent hearing that when seen concerning that, in service, doctors suspected it may have been due to something else – even mental impairment and resultantly wanted to put him on medication. But he insisted that it was an issue for “many, many years” preceding the initial diagnosis, and that it was only after enrolling in the VA healthcare system shortly after his retirement from service that he was able to undergo the sleep study and receive the diagnosis of OSA.   A February 2018 VA examination report confirms the diagnosis of OSA, and the examiner concluded that, given the then current severity of the condition and short length of time between diagnosis and the Veteran’s separation from service, his OSA was more likely than not incurred during his service. However, a prior, March 2016 VA examination instead had resulted in a contrarily unfavorable medical nexus opinion, since that prior VA examiner had concluded, instead, that the Veteran’s OSA was more likely the result of weight gain after conclusion of his service. During his recent hearing before this Board, the Veteran took exception with that prior VA examiner’s findings and conclusions – including especially as concerning the Veteran’s weight and body mass index (BMI) during his service in relation to his weight and BMI since conclusion of his service. He maintained that his weight and BMI in service were comparable to his weight and BMI at the time of his hearing, therefore, cannot be the reason or justification for disassociating his OSA from his service. In deciding an appeal, the Board may favor one medical opinion over another if it offers an adequate statement of reasons or bases. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). For a medical examination and consequent opinion to be considered adequate, they must consider all the relevant evidence of record, including lay statements. The opinion also must be supported by explanatory rationale; indeed, most of the probative value of an opinion comes from discussion of its underlying reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the more recent February 2018 VA examination and opinion that are favorable to this claim address the individual circumstances of this Veteran’s OSA and consider his specific reports of snoring and experiencing difficulty sleeping during his many years of service. Certainly, then, this supporting opinion is as probative as the earlier March 2016 VA opinion conversely against the claim.   In this circumstance the Veteran is given the benefit of the doubt and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (“a [V]eteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An “absolutely accurate” determination of etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology). Rather, this need only be an “as likely as not” proposition, which in this instance it is for the reasons and bases discussed. When the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.