Citation Nr: 21028596 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-06 076 DATE: May 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's obstructive sleep apnea began during or is otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 2001 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. A May 2019 Board decision found new and material evidence had been received to reopen a previous denial of service connection for sleep apnea and remanded the issue of service connection on the merits to the Agency of Original Jurisdiction for additional development. Entitlement to service connection for obstructive sleep apnea. The Veteran contends he has obstructive sleep apnea that is secondary to his service-connected posttraumatic stress disorder (PTSD) or, alternatively, directly related to his active duty service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA examination reports and post-service treatment records show the Veteran has obstructive sleep apnea. Therefore, the remaining question before the Board is whether the Veteran's obstructive sleep apnea is secondary to PTSD, or began during, is caused by, or is otherwise etiologically related to his military service. Based on a review of the record, the Board finds the evidence for and against finding that the Veteran has obstructive sleep apnea that manifested during service is at least of equal weight. A sleep disorder was not noted on the Veteran's April 2001 service entrance examination. His service treatment records show he complained of sleep difficulties on multiple occasions. A February 2003 treatment record notes he was referred to an ear, nose, and throat specialist for recurrent swelling of the uvula that occurred while the Veteran was sleeping. The physician diagnosed chronic rhinitis, deviated nasal septum, recurrent edema of the uvula from dryness, and snoring. In March 2003, the physician diagnosed sleep apnea but noted a sleep study should be undertaken. An October 2004 treatment record notes the Veteran appeared with a swollen uvula and reported it was a recurring problem that impaired his breathing. The treatment provider diagnosed possible obstructive sleep apnea but noted the Veteran had been unable to attend a previously scheduled sleep study due to a deployment. A July 2005 service treatment record notes he complained of day-time sleepiness and reported his uvula became swollen at times. He was referred for a sleep study, but the records do not indicate whether one occurred. The Veteran was provided a VA examination in June 2007. He complained of excessive daytime sleepiness. He reported his wife said he snored and paused his breathing while sleeping. Examination revealed a somewhat elongated uvula. The examiner diagnosed chronic rhinitis and a deviated septum. A sleep study did not occur. An October 2008 military hospital treatment record notes the Veteran complained of nightly sleep difficulties. VA treatment records show the Veteran underwent a sleep study in June 2013, and severe obstructive sleep apnea was diagnosed. Importantly, the Veteran is competent to report he experienced sleep difficulties between the documented complaints of sleep difficulties in service and when his filed his initial claim for service connection for obstructive sleep apnea in May 2007 and until a diagnosis of severe obstructive sleep apnea was confirmed by a June 2013 sleep study. The Board finds his statements are credible as they are supported by his available service treatment records and post-service treatment records. The Board acknowledges VA examiners opined in March 2015 and December 2019 that the Veteran's obstructive sleep apnea was less likely than not incurred in service. However, these opinions are of little probative value because neither examiner discussed his in-service symptoms or his continued complaints of sleep difficulties following service, and both relied, in most part, on a lack of documented chronicity between service and the eventual diagnosis. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Notably, there are no post-treatment service records or other evidence that indicates the Veteran denied having sleep difficulties between service and the June 2013 sleep study that confirmed the diagnosis of obstructive sleep apnea. Accordingly, the Board finds the evidence for and against the claim is at least in relative equipoise. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea is warranted. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.