Citation Nr: 21024526 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-08 389 DATE: April 23, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 2008 to August 2012. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for sleep apnea. After receiving new and material evidence within one year, the RO readjudicated the claim and continued the denial. The Veteran filed a Notice of Disagreement (NOD) in September 2018 and a Statement of the Case (SOC) was issued on February 2019. The Veteran perfected his appeal in February 2019. In a February 2020 decision, the Board denied the Veteran’s claim for service connection for sleep apnea. The Veteran appealed his case to the United States Court of Appeals for Veterans Claims (CAVC). In November 2020, CAVC vacated the Board’s February 2020 denial of the Veteran’s claim for service connection for sleep apnea, pursuant to a Joint Motion for Remand (JMR). Service Connection Service connection will be granted if the evidence demonstrates that the current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in service injury or disease; and (3) a relationship between the two. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection for sleep apnea is granted.  Although the Veteran’s February 2019 substantive appeal addressed the denial of his claim for service connection for sleep apnea, to include as secondary to his service-connected posttraumatic stress disorder, as the Board is granting the Veteran’s claim on a direct theory, consideration of other theories is unnecessary. After a VA sleep study was conducted in May 2018, the Veteran was diagnosed with obstructive sleep apnea. He has thus met the current disability requirement. As to the in-service disease element, the Veteran is competent to describe symptoms that he experienced in-service, or at any time after service, when the symptoms he experienced were perceived directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). In a September 2018 letter, the Veteran indicated that he began experiencing interrupted sleep and difficulty falling and staying asleep during service. The Veteran’s statements are competent and credible. Thus, the in-service disease element has been satisfied. The remaining issue is whether the Veteran’s current diagnosed sleep apnea is related to, or had its onset during, his military service. In his February 2019 VA Form 9 appeal, the Veteran stated that he had interrupted sleep and difficulty falling and staying asleep during service, long before he was diagnosed by the VA in 2018. He also noted that, contrary to the June 2018 VA medical opinion attributing his sleep apnea to obesity when his symptoms began during service, he was not obese. The Veteran’s service treatment records (STRs) do not note any complaints regarding sleep apnea or sleep-related issues during service. However, in a September 2018 statement, the Veteran indicated that, while in service, although he experienced sleep symptoms, he sought no medical treatment because he believed that seeking medical attention for sleep disturbances was frowned upon, due to many soldiers abusing sleep medication. A March 2018 VA sleep study indicates the Veteran’s wife reported to a VA physician that she had witnessed the Veteran’s sleep apnea symptoms during the night. Three years after separation from service, in a July 2015 VA treatment report, the Veteran reported to a VA physician that he had been experiencing problems falling and staying asleep. Evidence against the claim includes a June 2018 VA examination report, in which the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. The examiner’s rationale was that the “single strongest risk factor for OSA is an obese body habitus,” and noted the Veteran had a Body Mass Index (BMI) of 36, which classified him as morbidly obese. As noted by the parties to the JMR, the June 2018 opinion is inadequate and of little, if any, probative value, as the examiner did not consider or take into account the Veteran’s lay statements as to his sleep disturbances during service and his continuous problems, getting to and staying asleep, since leaving service. See Buchanan v. Nicholson,451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The parties to the JMR further found that the examiner’s conclusion was inconsistent with the Veteran’s lay statements, and raised questions regarding the examiner’s rationale and the factual predicate of the June 2018 medical opinion. Thus, there is an inadequate negative nexus opinion and competent and credible lay statements from the Veteran, noting the occurrence of his sleep apnea symptoms, both in and after service, and their continuity. While the Board could remand the claim for an adequate medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38C.F.R. §3.304 (c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’“ (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. Given the competent and credible lay statements as to the Veteran’s sleep apnea symptoms in and since service, and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. Moreover, sleep apnea is the type of disability for which lay evidence can support a claim for service connection. Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.