Citation Nr: 21023895 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-06 891 DATE: April 21, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The most probative evidence shows that the Veteran’s OSA began during his period of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1984 to August 1992, including service in the Persian Gulf. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This matter was previously before the Board in January 2018, November 2018, and January 2021, on which occasions the issue on appeal was remanded for additional development. In the January 2018 Board decision, the Board found new and material evidence was received to reopen the claim of service connection for OSA. Service Connection Entitlement to service connection for OSA. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). The Board finds that service connection for OSA is warranted based on the competent and probative lay and medical evidence of record. The Veteran was diagnosed with OSA by sleep study performed in 2002. See August 2002, VA treatment record. The Veteran reports that his sleep problems began when he was stationed in Germany. See January 2013, VA treatment record. Specifically, the Veteran stated his tentmates complained about his snoring and arrested breathing during sleep during while deployment in 1991-1992. See September 2018, VA examination. The Veteran’s wife reported that the Veteran snores heavily and has occasional apneic moments. See May 2002, VA treatment record. The Veteran and his lay witnesses are competent to offer testimony as to symptoms they observed, and the Board finds their statements credible. Layno v. Brown, 6 Vet. App. 465 (1994). VA treatment records show the Veteran reported that he experienced symptoms of loud snoring, restless/non-restorative sleep, and apneic episodes. See May 2002, VA treatment record. At the time sleep apnea was diagnosed, the Veteran’s treating physician noted the Veteran has classic symptoms of sleep apnea. See August 2002, VA treatment record. In light of the above evidence, the Board finds that the criteria for service connection for OSA have been met. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The competent and credible evidence shows that the symptoms that the Veteran had in 2002 were classic symptoms of OSA and were the same symptoms shown to have started during his active duty service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the in-service injury/disease and nexus elements of service connection have been met. Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). The Board notes the September 2018, September 2019, and January 2021 negative VA medical opinions of record, but finds those opinions have little probative value as the reasoning provided focuses on the lack of complaints related to sleep apnea or sleep disorders in the Veteran’s service medical records and fails to adequately explain why the symptoms the Veteran and his lay witnesses observed during active duty service do not indicate that the Veteran’s OSA began in service. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (a medical opinion must not rely solely on the absence of contemporaneous medical evidence); see also McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (VA examiner’s failure to consider Veteran’s lay testimony when formulating opinion renders opinion inadequate). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, Associate 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.