Citation Nr: 21027035 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-31 723 DATE: May 4, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran's 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 had active duty service from November 1990 to June 1991. The Veteran also had active duty for training (ACDUTRA) from January 1989 to July 1989. This matter comes before the Board of Veterans' Affairs (Board) on appeal from an April 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The matter was remanded for further development in May 2019 to obtain a VA opinion regarding the Veteran's sleep apnea condition. The matter was again remanded in April 2020 for lack of compliance with the prior remand directives. The Board finds that there has now been substantial compliance with its past directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea condition was "caused and aggravated" by his military service. See April 2013 Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current sleep apnea disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Private treatment records from March 2010 and January 2015 show the Veteran has a current diagnosis of obstructive sleep apnea. As such, the first element of service connection is met. The Veteran's service treatment records do not contain complaint or treatment for a sleep condition, however, as noted by the Board in April 2020, the lay evidence of record includes several statements by fellow servicemembers about their observations of the Veteran during his service. A November 2015 statement by a fellow servicemember, who has the initials K.P., indicates that he shared a tent with the Veteran during service and heard him snore profusely on a nightly basis. An August 2016 statement by fellow servicemember C.M. indicates that during service he witnessed the Veteran snore loudly and wake up coughing and trying to catch his breath. Another August 2016 statement by servicemember R.G. stated that during service he witnessed the Veteran's loud nightly snoring, and that at times the Veteran appeared to be having trouble breathing while he was sleeping, seeming to be trying to catch his breath. An August 2016 statement from servicemember S.N. stated that she recalled the Veteran being teased during service because his snoring and snorting was so loud and disruptive to those who shared his tent. These observational lay statements are competent, and the Board finds them to contain credible and probative evidence of the Veteran's symptoms during active service. As there is competent, credible, and probative evidence that the Veteran had in-service symptoms of a sleep condition, the Board finds that the second element of service connection is met. The remaining question is whether the Veteran's sleep apnea is related to his active service. On this question there are medical opinions in favor of and against the claim, however, the Board finds the favorable private opinion to be more probative than the VA opinion against the claim. As noted in the Board's April 2020 remand decision, a November 2019 VA medical opinion concluded the Veteran's sleep apnea was less likely than not incurred in or caused by service. The Board found the rationale of the opinion incomplete and inadequate, noting that it lacked acknowledgement of any lay evidence of record. The Board again assigns no probative value to that opinion. The evidence of record also contains a May 2020 medical opinion against the Veteran's claim, however, this clinician relied on the lack of corroborating and contemporaneous service medical records in formulating her opinion. The Board notes that lay evidence does not lack probative value simply because of a lack of corroborating contemporaneous medical evidence. As the Board finds the lay statements of the Veteran's fellow servicemembers credible, the May 2020 examiner's opinion relies on an incomplete factual basis. Therefore, the Board assigns limited value to the May 2020 VA medical opinion. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The medical opinion evidence in favor of the claim includes a medical opinion by a private physician with the initials D.O.W., received by VA in August 2020. This physician indicated that he interviewed the Veteran, conducted a review of the Veteran's medical history including the Veteran's previous sleep study records, and reviewed the statements made by the Veteran's fellow servicemembers. Dr. D.O.W. concluded it was "more likely than not" that the Veteran's obstructive sleep apnea "began during his military service but remained undiagnosed until December 2014." This clinician's conclusions are consistent with the evidence of record, and the Board finds the examiner's opinion probative, because it is based on a thorough review of available medical and lay evidence and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Having fully considered the record, the Board finds a preponderance of the competent, credible, and probative evidence weighs in favor of service connection. Accordingly, the appeal for service connection for sleep apnea is granted. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.