Citation Nr: 21026585 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-32 954 DATE: May 3, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The Veteran's current sleep apnea began during active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1958 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision. This matter has been before the Board on several occasions and was last remanded in November 2020 to inquire with the JSRRC as to whether the Veteran was exposed to asbestosis, and then provide an addendum opinion. See Remand BVA received 11/09/2020 at page 7. Although the U.S. Joint Services Records and Research Center (JSRRC) development did not occur, the Board finds that since this decision is a full grant of the benefit sought on appeal, there is no prejudice to the Veteran in not remanding for compliance, and instead proceeding with adjudication of the claim. Service connection for sleep apnea is granted. The Veteran contends that his sleep apnea began during service with symptoms of sleep impairment and snoring, which was not recognized as manifestations of sleep apnea during the 1960s. See NOD received 3/27/2014 at page 3; see also C&P Exam received 3/12/2018 at page 1. Additionally, the Veteran claims that he did not seek treatment because he did not want to jeopardize his military career. See VA Form 20-0995 Supplemental Claim Application received 6/14/2019 at page 2. Alternatively, the Veteran has claimed that his sleep apnea was caused by exposure to asbestosis. See Correspondence received 7/06/2020. The Board concludes that the Veteran has a current disability that began during active service with symptoms of snoring and witnessed apnea. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In May 2013, the Veteran submitted a Disability and Benefits Questionnaire (DBQ) wherein his physician diagnosed him with obstructive sleep apnea. See Disability and Benefits Questionnaire received 5/17/2013 at page 1. Therefore, the Veteran has a current diagnosis of obstructive sleep apnea. The Veteran also submitted two lay statements from his children, one of whom is a retired nurse, wherein they attested to hearing the Veteran's loud snoring and witnessing him periodically stop breathing while sleeping during his active service. See Buddy statement (M.M.B) received 6/18/2019 at page 1; see also Buddy Lay Statement (S.A.M) received 6/18/2019. Thus, the question becomes whether the current disability is related to service. On this question, there are probative opinions in favor of and against the claim. The evidence against the claim includes two VA examiner opinions that provided a negative nexus statement. The March 2018 VA examiner found that the Veteran had no documented sleep problems until 2013 and that the cause of his sleep apnea was likely his obesity. See C&P Exam received 3/12/2018 at page 1. The December 2019 VA examiner also found that the Veteran's sleep apnea was less likely than not incurred in or caused by service because there was no evidence the Veteran sought medical services during active duty or within a year following separation, and the buddy statements showed mainly a "temporal relationship". See C&P Exam received 12/23/2019 at page 2. The Board gives both the March 2018 and December 2019 VA examiners' opinions minimal probative weight because both opinions are based, at least in part, on the lack of confirmatory medical records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). The evidence in favor of the claim includes a positive nexus statement from the December 2020 VA examiner. In the addendum opinion, the December 2020 VA examiner stated that the Veteran's sleep apnea was likely due to a failing or abnormality of his upper airway, and that the condition is chronic and lifelong and began during his active military service. See C&P Exam received 12/02/2020 at page 4. The December 2020 VA examiner went on to say that the Veteran's apnea had nothing to do with asbestosis. Additionally, the December 2020 VA examiner considered the Veteran and his family members statements in his opinion. Id. (Continued on the next page) Upon review of the record, the Board finds the competent medical evidence to at least be in equipoise as to whether the Veteran's current sleep apnea arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.