Citation Nr: 21024446 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-23 161 DATE: April 22, 2021 ORDER Resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Sleep apnea is related to the Veteran’s active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea 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 had honorable active duty service with the United States Army from October 2002 to September 2003, July 2007 to October 2007, and July 2010 to June 2012, with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018 the Board remanded the case for further development which has been completed. Entitlement to service connection for obstructive sleep apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran asserts that his currently diagnosed sleep apnea had its onset during service, specifically during a deployment to Afghanistan in 2011-2012. Service treatment records are silent as to complaints of or treatment for sleep apnea. On a post-deployment survey dated March 19, 2012, the Veteran denied problems sleeping. However, a service treatment record dated the following day shows ‘insomnia’ in a list of the Veteran’s chronic medical problems. On a post-service December 2012 VA treatment record, the Veteran reported that his wife had complained that he stops breathing during his sleep and snores excessively. In January 2013, the Veteran was referred to a private facility for a polysomnographic interpretation. It was noted that he had a history of difficulty concentrating, fatigue, excessive daytime sleepiness, snoring, and witnessed apneas. The diagnosis was moderate obstructive sleep apnea. In May 2016, the Veteran submitted buddy statements from three fellow soldiers describing his in-service symptoms of snoring, gasping for air, and exhaustion towards the end of his deployment in Afghanistan in 2011-2012. A VA examination was conducted in October 2019. The VA examiner opined that: It is less likely than not (less than 50 percent likely) that the sleep apnea disorder had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury. Review of claims file does not show objective evidence of onset of sleep apnea during service. Veterans buddy statements are subjective only. A nexus is not established. After careful review of the evidence, and resolving all reasonable doubt in favor of the Veteran, service connection for sleep apnea is warranted. The Board is mindful of the unfavorable nexus opinion provided by the VA examiner. However, there is also favorable evidence on the matter of causal nexus. The January 2013 sleep study diagnosis of obstructive sleep apnea was based in part, on the Veteran relating a history of difficulty concentrating, fatigue, excessive daytime sleepiness, snoring, and witnessed apneas. Notably, insomnia was listed as one of the Veteran’s chronic medical problems in his March 2012 service treatment record. Also, the December 2012 VA treatment record shows the Veteran reported that his wife noticed excessive snoring and apneas while he was sleeping. The Board notes these symptoms were present within a few months of the Veteran’s discharge from active duty. The Veteran’s statement to his VA provider, during the course of seeking treatment, is found credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(ascribing heightened credibility to statements made to clinicians for the purpose of treatment). The Board finds no obvious conflict in the Veteran having denied problems sleeping on his March 2012 post-deployment survey and then later reporting several months later in December 2012 that his wife noticed symptoms of apneas and excessive snoring after he returned home from that deployment. While a diagnosis of sleep apnea is not noted in the service treatment records, the mere absence of contemporaneous medical documentation of treatment (or complaints) does not alone render lay testimony not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008). This is one such instance where the competent and credible lay evidence as to symptoms shortly after service is sufficient to establish in-service onset. Indeed, the noted symptoms, at least in part, supported the diagnosis of sleep apnea by a medical professional only seven months after the Veteran’s separation from service. Jandreau, supra. The VA examiner, in finding that the buddy statements proffered in support of the claim as a whole were “subjective only,” did not fully address the relationship between those statements, the report of the Veteran’s wife noticing similar symptoms on his return from deployment, and the objective testing that diagnosed sleep apnea only a few months later. Thus, the Board does not find the examiner’s negative nexus opinion particularly persuasive and dispositive on the question of causal nexus. Rather, the credible and competent evidence pertinent to causal nexus is in relative equipoise here. Reasonable doubt regarding causal nexus is resolved in the Veteran’s favor. Service connection for sleep apnea is granted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.