Citation Nr: 21023098 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-27 514A DATE: April 20, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s OSA is related to service. CONCLUSION OF LAW The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from July 1971 to July 1974 and from September 1977 to September 1981. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision. This matter was previously remanded by the Board in November 2018 to afford the Veteran a VA examination in connection with this claim. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service connection for OSA Legal Criteria Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility, and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). Factual Background & Analysis The Veteran contends that his currently diagnosed OSA began during service. He states that he began experiencing symptoms of loud snoring, periods of apnea, difficulty staying asleep and excessive daytime fatigue since the late 1970’s. A May 2019 statement from the Veteran’s wife of 47 years notes that the Veteran would snore loudly during the night and that she would have to wake him up because he stopped breathing and would be gasping for air. He would also be excessively fatigued during the day. The Veteran was afforded a VA examination in November 2019. The examiner opined that it is at least as likely as not that the Veteran’s OSA is causally related to service. The examiner considered the Veteran’s reports of experiencing symptoms since service and noted that the medical records reflect a history of OSA. Another VA examination and medical opinion dated July 2020 is of record. The examiner stated that it is less likely than not that the Veteran’s OSA is causally related to service. The examiner stated that the Veteran’s complaints are noted, but snoring itself does not constitute OSA, and the Veteran reported problems falling asleep, which is not typically associated with OSA. Further, there is no evidence in the STRs or proximate to service regarding sleep disturbances. The first notation of a sleep disturbance is November 2001, at which time a sleep study was ordered. This sleep study was not performed but the Veteran was eventually diagnosed with OSA in May 2006. Further, the examiner asserted that there is no nexus for OSA documented in service or proximate to service because the first evidence of OSA was in 2001. After considering the above, the Board finds the evidence to be in relative equipoise as to whether the Veteran’s OSA is at least as likely as not causally related to his service. The Veteran provided competent and credible lay statements about experiencing symptoms of loud snoring, periods of apnea, difficulty staying asleep and excessive daytime fatigue during service. These statements are corroborated by the Veteran’s wife’s statements about witnessing these symptoms firsthand. The Board finds that the Veteran and his wife are competent to report their observations, and there is no reason to discount the credibility of their reports based on the evidence of record. Moreover, the July 2020 VA examiner’s negative nexus opinion is substantially based on the lack of documented OSA symptoms in the STRs. They did not meaningfully consider the Veteran’s or his wife’s lay statements, or the possible etiological relationship between continued exposure to inhalants from burn pits during service and the onset of the Veteran’s OSA. Consequently, the Board cannot afford this opinion more probative weight than the November 2019 VA examiner’s positive nexus opinion. Accordingly, considering the Veteran and his wife’s statements regarding the onset of OSA symptoms during service, and the November 2019 positive VA nexus opinion, the Board finds that the evidence is in relative equipoise as to whether it is at least as likely as not that the Veteran’s OSA is causally related to service. With resolution of reasonable doubt in the Veteran’s favor, the Board concludes that the criteria for service connection for OSA have been met. Service connection for OSA is granted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.