Citation Nr: 21028335 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-36 516 DATE: May 11, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his obstructive sleep apnea onset in his service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 2010 to August 2013. On the VA Form 9 (substantive appeal) filed in August 2016, the Veteran requested a videoconference hearing before a Veterans Law Judge. This hearing was scheduled in September 2019. However, the record indicates that the Veteran failed to report for his hearing. The notice of this hearing was sent to the Veteran's correct address, and there are no reports of returned mail in the claims file or a request for an address change. To date, the Veteran has not shown good cause for his failure to report to his previously requested hearing and has not requested a new hearing before the Board of Veterans' Appeals (Board). Accordingly, the Board considers the hearing request to be withdrawn. 38 C.F.R. § 20.704(d). Service Connection for Obstructive Sleep Apnea The Veteran contends that his sleep apnea is related to his active duty. Specifically, he states that he started having sleep problems since his return from deployment to Iraq and that the issues persisted and became more apparent after his discharge from service. See January 2016 Lay Statement from Veteran. The Board finds that the Veteran's sleep apnea is etiologically related to his military service. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). A February 2016 VA examination report shows that the Veteran has obstructive sleep apnea, for which he was diagnosed in December 2015. The report reveals that the Veteran underwent a sleep study and was given a continuous positive airway pressure (CPAP) machine, which he uses nightly. Service treatment records (STRs) show complaints of sleep problems. Specifically, the Veteran completed various medical questionnaires close to the end of his service period, on which he indicated that he had sleep problems such as sleep disturbances and frequent trouble sleeping. On a Report of Medical Assessment form, completed in February 2013, he indicated that he did not seek medical attention for his sleep apnea. On that same questionnaire, he noted that his sleep problems got worse. Then, on the Report of Medical Examination for his separation physical, dated in March 2013, sleep disturbance was noted as a significant or disqualifying defect. The examiner indicated that the Veteran got less than eight hours of continuous sleep each night. The examiner further noted that he discussed sleep hygiene techniques with the Veteran. The Veteran has submitted lay statements in support of his claim. In a January 2016 statement, he explained that his sleep problems became more apparent shortly after his service discharge. He noted that he realized the severity of his sleep issues when his girlfriend kept waking him up to tell him that he was snoring loudly and that he would randomly stop breathing while sleeping. He further explained that this is what finally made him decide to undergo a sleep study. The Veteran is competent to report issues such as difficulty sleeping during service, and his reports are credible and entitled to probative weight. His reports are internally consistent, and are also consistent with other evidence of record, including the March 2013 separation physical examination report that documents sleep disturbances as a significant defect. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The February 2016 VA examiner did not offer a definitive opinion on whether the Veteran's sleep apnea is related to his active duty. The examiner noted, based on evidence presented in the Veteran's service medical records, that he would have to resort to mere speculation. He referred to various entries in the Veteran's service medical records (including at the service separation examination) indicating sleep disturbances (such as difficulty initiating and maintaining sleep for more than eight hours). The examiner noted that the Veteran is overweight, at 190 pounds, which is a possible risk factor for his sleep apnea. The examiner was unable to provide a definitive nexus opinion without resorting to mere speculation because the in-service complaints are not characteristic of complaints related to a sleep disorder. As the examiner's conclusion is merely speculative, and somewhat contradictory, the Board does not assign it much probative weight. However, in light of the examiner's acknowledgement that it is in fact possible that the Veteran's sleep apnea are related to his in-service sleep complaintsas well as the Veteran's competent and credible assertions regarding the onset, and chronicity, of his sleep problems, the Board will resolve any reasonable doubt in the Veteran's favor and find that his currently-diagnosed obstructive sleep apnea is related to his active service. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed obstructive sleep apnea is related to his service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for obstructive sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.