Citation Nr: 21025311 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-28 732A DATE: April 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his obstructive sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. § 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.302, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from February 1983 to April 1987, December 2002 to September 2004, January 2005 to June 2005, and November 2005 to April 2006. He also had additional service of an unverified nature in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with that determination and the present appeal ensued. In February 2021, the Veteran testified at a virtual Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis As an initial matter, the Board notes that the Veteran was diagnosed with obstructive sleep apnea following a sleep study in October 2014. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran’s service-treatment records are silent for in-service treatment or diagnosis of obstructive sleep apnea. However, the absence of documented treatment in service is not considered fatal to a service connection claim. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be respiratory problems while sleeping such as snoring. Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Board notes that the Veteran’s wife submitted a statement dated February 2021. In the statement, the Veteran’s wife explained that she married the Veteran in 2002, and that throughout their marriage the Veteran has been a heavy snorer with difficulty getting a good night’s sleep. The Veteran’s wife stated that the Veteran’s symptoms had gotten progressively worse until the Veteran’s October 2014 diagnosis and treatment. The Veteran’s wife also acknowledged that the couple’s children had noticed and commented on the Veteran’s snoring. The Veteran’s wife concluded that the Veteran has seen a significant improvement in his sleep and overall health since having been prescribed a CPAP machine. In addition to the Veteran’s wife’s lay statement, the Veteran has also consistently noted his loud snoring, further noting that he became aware of it around 2002, the year he married his wife. During his February 2021 hearing the Veteran explained that his snoring was so aggressive, that it would cause his wife to feel the bed move. The Veteran noted that in 2006 his symptoms concerned him enough he expressed his concerns to the Air Force. This resulted in the Veteran reporting to a sleep lab in August 2006, a few months after his active service ended. As stated above, the Board notes that symptoms of sleep apnea are capable of lay observation and as the Veteran has been consistent with his statements, which are corroborated by his wife’s competent and credible statement, the Board finds them to be credible and of significant probative value. Although the August 2006 sleep study did not include a diagnosis of obstructive sleep apnea, the sleep report did include statements relevant to the Veteran’s symptoms, which he has had since active service. The August 2006 report includes documentation of mild hypopneas, mild central apneas, moderate snoring, and mild oxygen desaturation. The Board notes that the Veteran was afforded a VA examination in April 2017, which concluded with a negative nexus opinion based on an evaluation focused on the August 2006 sleep study, and secondary service connection through a variety of theories. While the AOJ concluded that the Veteran’s obstructive sleep apnea should not be service connected, the examiner relied on a lack of a diagnosis of obstructive sleep apnea in the August 2006 sleep study. The examiner did not address the Veteran’s lay statements of symptoms, which began in service. The examiner also did not address the notes contained in the August 2006 sleep study, specifically the noted central sleep apnea and hypopnea. The Board finds that the examiner did not adequately consider the Veteran’s in-service problems sleeping and loud snoring as a symptom of the Veteran’s disability. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant’s lay assertions regarding onset of symptoms or injury during service). The Board also finds that the competent evidence of record is at least in equipoise as to whether the symptoms diagnosed as sleep apnea in 2014 are the same symptoms the Veteran originally experienced in active service. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for obstructive sleep apnea is warranted on a direct basis. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.