Citation Nr: 21023130 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-25 594 DATE: April 20, 2021 ORDER Entitlement to service connection for upper airway resistance syndrome, later changed to obstructive sleep apnea, is granted. FINDING OF FACT The Veteran’s upper airway resistance syndrome, later changed to obstructive sleep apnea, was caused by his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for upper airway resistance syndrome, later changed to obstructive sleep apnea, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from November 1987 to November 2011. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a May 2014 rating decision by the Regional Office (RO). The Board notes that the claim for service connection for obstructive sleep apnea was initially denied in a May 2014 rating decision. However, new and material evidence regarding that issue was added to the record within the one-year appeal period, to include additional treatment records and an October 2014 VA medical opinion. As new and material evidence was submitted within one year of the May 2014 rating decision, that decision did not become final for the issue of entitlement to service connection for obstructive sleep apnea. 38 C.F.R. § 3.156 (b). Therefore, new and material evidence is not needed to reopen the previously denied claim. The Board will consider the claim on a de novo basis. Entitlement to service connection for upper airway resistance syndrome or sleep apnea. The Veteran asserts that he has sleep apnea that had its onset during his active service. In light of the medical evidence of record, the Board has more properly characterized the claim as entitlement to service connection for upper airway resistance syndrome or sleep apnea. A March 2000 service treatment record shows the Veteran reported wheezing and difficulty breathing at night, and asthma was suspected. See STR, received August 2013 (set 4 of 9) at p.12 of 64. An August 2011 sleep study report from his active service shows the Veteran reported a history of excessive daytime sleepiness, loud snoring, witnessed apneas, gasping arousals, and unrefreshing sleep. The report notes a BMI of 29. The report notes that sleep-disordered breathing resulted in a mild desaturation of 92 percent. The report concludes that the study was negative for “significant” obstructive sleep apnea, and upper airway resistance syndrome was noted. It was recommended that the Veteran undergo further evaluation by a “formal sleep consultation.” See STR, received February 2012 (set 2 of 6) at p.84 of 103. The report further recommended that the Veteran seek therapies to reduce upper airway resistance during sleep, including weight loss. Prior service treatment records show that the Veteran’s weight was as high as 177 pounds during service, at a height of five feet, five inches, and that he was referred to weight management in service. See, e.g., STR, received February 2012 (set 2 of 6) at p.84 of 103, and received August 2013 (set 8 of 9) at p.28 and 32 of 76. The Veteran separated from service in November 2011. A September 2012 sleep study shows diagnosed obstructive sleep apnea and obesity, and diet and weight management were recommended. See STR, received August 2013 (set 5 of 9) at p.1. In light of the above, the Board finds that service connection for upper airways resistance syndrome, later changed to obstructive sleep apnea, is warranted. As shown above, the Veteran’s service treatment records show he was overweight in service, and the August 2011 sleep study report from service shows diagnosed upper airways resistance syndrome and indicates it was due to the Veteran’s weight in service. The diagnosis was changed only months later in September 2012 to obstructive sleep apnea after a second sleep study was performed. The Board acknowledges a March 2014 VA general examination report, but finds that the opinion is too brief and not supported by an adequate rationale. The Board also acknowledges an October 2014 VA medical opinion showing the examiner opined that the Veteran’s obstructive sleep apnea was less likely than not related to service, reasoning that the Veteran’s apnea hypopnea index (AHI) at the time of the August 2011 sleep study was below 5.0. However, the examiner never addressed the Veteran’s upper airway resistance syndrome. In this particular case, the Board finds that a remand for an etiological opinion as to the diagnosed upper airway resistance syndrome is unnecessary because it clearly had its onset during the Veteran’s active service as it was shown by the August 2011 sleep study. (Continued on the next page)   Therefore, the Board concludes that entitlement to service connection for upper airway resistance syndrome, later changed to obstructive sleep apnea, is warranted and the claim is granted. A. J. Spector Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Juliano, Janee L. 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.