Citation Nr: 21028983 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 09-41 428 DATE: May 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The evidence of record is at least evenly balanced to suggest that the Veteran's sleep apnea first manifested during active duty service and has continued to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1985 to April 1986, and then again from January 2004 to April 2005, including verified service in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran also has other duty with the U.S. Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 20, 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This claim has a long procedural history. The Veteran initially requested a hearing before a Veterans Law Judge. See VA Form 9 (rec'd Oct. 20, 2009). This hearing request was withdrawn in January 2010, and the Board proceeded accordingly. See BVA Decision (June 10, 2020), on Page 2, at "Introduction." During the development of the Veteran's claim, which has been continuously prosecuted, it has been before the Board on five previous occasions: May 28, 2013; January 12, 2016; May 8, 2017; December 4, 2017; and January 2, 2020. On January 12, 2016, the claim was denied; however, this Board denial was vacated by the Court of Appeals for Veterans Claims (Court) in a November 29, 2016 Memorandum Decision. On the four other occasions, the Board remanded the claim for service connection for obstructive sleep apnea. See (First) BVA Remand (May 28, 2013); BVA Decision (Jan. 12, 2016); Court Decision ( Nov. 29, 2016 ); (Second) BVA Remand (May 8, 2017); (Third) BVA Remand (Dec. 4, 207); (Fourth) BVA Remand (Jan. 2, 2020). The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) on February 19, 2021. In short, the February 2021 SSOC summarizes the Veteran's claim after the Agency of Original Jurisdiction (AOJ) documented its efforts in rebuilding the Veteran's claims file. See, e.g.: (Fourth) BVA Remand, supra; VA Form 21-6789 (rec'd June 22, 2020); VA Form 27-0820 (rec'd Oct. 15, 2020); VA Form 21-0820 (rec'd Nov. 9, 2020); SOC (Sept. 9, 2009) (rec'd Dec. 23, 2020); VA Form 9 (Oct. 20, 2009) (rec'd Dec. 23, 2020); VA Form 21-6789 (Jan. 27, 2021) (confirming that only the original claim as received on August 28, 2007 could not be located); SSOC (Feb. 19, 2021). The Board accordingly reasserts jurisdiction. The Board concludes that the Veteran has been afforded substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board ultimately grants the claim for the reasons below, see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; therefore, in the event that the Veteran was not afforded substantial compliance with the previous remand directives, he is not be prejudiced by any such failure in light of a full grant of the benefit sought on appeal. Entitlement to service connection for obstructive sleep apnea is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in service incurrence or aggravation of a disease or injury; and a nexus between the claimed in service disease or injury and the present disease or injury. 38 C.F.R. § 3.303(d); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) [(table)]. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has continuously asserted that he was diagnosed with obstructive sleep apnea at the same time that he was diagnosed with a pulmonary embolism (which is not on appeal, but is service connected), in April 2005. See VA Exam (Aug. 11, 2017); see also VA Form 21-4138 ( July 7, 2017 ) (rec'd Dec. 23, 2020). The Board has previously directed the AOJ to reconstruct the Veteran's claims file; therefore, the earliest documented evidence of the Veteran's diagnosis of obstructive sleep apnea is dated June 7, 2006in other words, a little over one year following discharge from active duty. See, e.g.: Medical Treatment Record ( June 7, 2006 ) (rec'd Dec. 23, 2020) (dictated June 9, 2006); Rating Decision (May 20, 2008), at Page 2, Section No. 1; Medical Treatment Record ( Dec. 5, 2006 ) ("Pt returned from Iraq last year 2005. Since then diagnosed with sleep apnea."); VA Exam (Aug. 11, 2017) (with typographical errors stating diagnosis dated June 9, 2016, instead of June 9, 2006). The sleep study confirming the diagnosis as of June 2006 offers no indication as to the Veteran's previous history of symptoms consistent with obstructive sleep apnea. An August 2017 VA examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by his service as there is no documentation in the medical record showing a diagnosis of sleep apnea during the Veteran's hospitalization for a pulmonary embolism in April 2005. The examiner noted that the clinical evidence showed a definite diagnosis of obstructive sleep apnea by sleep study in June 2016, more than one year after discharge from service. The examiner further noted that the Veteran's obstructive sleep apnea was more likely than not related to a developmentally narrow oropharyngeal airway, often with a superimposed elevation of body mass index, creating encroachment of the airway with fatty soft tissues and natural aging with encroachment of airway with floppy soft tissues. However, the examiner did not consider the Veteran's reports that his obstructive sleep apnea symptoms began during service. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). This opinion is therefore being afforded little, if any, probative weight. As indicated above, the AOJ has attempted to reconstruct the Veteran's claims file, and all procedures to locate outstanding documents have been fully documented. See Stegall, supra. The Board concludes that in this circumstance, there is no reason to doubt the Veteran's credibility. He has continuously stated that his obstructive sleep apnea was diagnosed along with a pulmonary embolism and that he experienced symptoms of obstructive sleep apnea during service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Furthermore, the Board notes that clinical evidence is not categorically required to satisfy the nexus element of the service connection framework. See Davidson v. Shinseki, 581 F.3d 1212 (Fed. Cir. 2009). Overall, although there is no probative etiology opinion addressing the etiology of the Veteran's obstructive sleep apnea, the Board finds that the clinical evidence of a diagnosis of obstructive sleep apnea soon after service as well as the Veteran's credible statements regarding the continuity and duration of his obstructive sleep apnea symptoms to be sufficient to establish entitlement to service connection in this instance. The Board ultimately concludes that any remand would be proper as the Board is prohibited from remanding for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 7 Vet. App. 305, 312 (2003). Furthermore, the Board finds that a subsequent remand is not reasonably likely to result in the production of any additional documentary evidence, let alone favorable evidence. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The evidence is at least evenly balanced as to whether the Veteran's obstructive sleep apnea is related to his military service. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, the claim of service connection for the disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.