Citation Nr: 21029560 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-26 461 DATE: May 13, 2021 ORDER New and material evidence having been received, the claim of service connection for sleep apnea is reopened. Service connection for sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea had its onset during service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been 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 November 1987 to May 2010. The case is on appeal from a May 2015 rating decision. In August 2020, the Veteran testified at a Board hearing. 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for sleep apnea. By June 2010 rating decision, a claim of service connection for sleep apnea (a sleep disorder) was denied. The Veteran did not appeal. Thereafter, the Veteran submitted an October 2011 claim to reopen service connection for sleep apnea. By a February 2013 rating decision, the claim was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in December 2014. No new evidence or notice of disagreement was received by VA within one year of the issuance of the February 2013 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for sleep apnea is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also Dr. John Roehrs' January 2014 medical opinion. 2. Service connection for sleep apnea. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that his obstructive sleep apnea had its onset during service. The Veteran's service treatment records (STRs) contain records near the end of his lengthy service period, including dated June 2009 and March 2010, in which he reported frequent trouble sleeping. A January 2010 STR listed sleep apnea as an ongoing medical problem. A later January 2010 record revealed that the Veteran underwent a sleep study and reported a history of loud snoring, witnessed apnea and waking up at night. An April 2010 medical examination showed the Veteran has trouble sleeping, snoring, breathing pauses and problems staying asleep. The examiner indicated the testing which took place in January 2010 did not show sleep apnea; however, he stated the Veteran may need further treatment for sleep problems. Along with the Veteran's December 2014 claim to reopen service connection for sleep apnea, he submitted a January 2014 medical opinion. The examiner diagnosed the Veteran with obstructive sleep apnea, effective January 2010. The physician indicated the Veteran underwent a January 2010 sleep study that revealed obstructive sleep apnea. An April 2017 VA opinion was submitted in which the examiner indicated the January 2010 sleep study shows obstructive sleep apnea is present, however, the data does not support a diagnosis of significant sleep apnea or desaturation (oxygen) at that time. The examiner noted in August 2011 the Veteran underwent a sleep study with the Tucson VA Medical Center that demonstrated mild obstructive sleep apnea with a respiratory disturbance index of 9 per hour. The examiner noted obesity is the dominant factor among causes of sleep apnea. He opined the Veteran's sleep apnea is not related to service and by the time it was confirmed that sleep apnea was present, the Veteran was separated from service and had gained more than 30 pounds, meeting the criteria for obesity. The Veteran was afforded an August 2020 Board hearing in which he reported that although he was officially diagnosed with sleep apnea in 2011, the onset of the disorder was during service. He stated when he sought treatment for sleep apnea in 2010, prior to separating from service, and it was found that he had a mild case of sleep apnea. The Veteran testified that he continues to experience sleep apnea and uses the CPAP machine every day. Here, the evidence shows the Veteran had more than 22 years of active service and near the end of his service period, he sought treatment for sleep apnea and underwent a sleep study. There is conflicting evidence as to whether the Veteran had a diagnosis of obstructive sleep apnea at that time. The January 2014 medical examiner determined the Veteran's obstructive sleep apnea was diagnosed in January 2010 and as such, the onset was during service. However, the April 2017 examiner stated sleep apnea was not present until August 2011, after the Veteran had gained more than 30 pounds. The Board determines the evidence has reached a level of equipoise with respect to the nexus element for this claim. When resolving any reasonable doubt in the Veteran's favor, the Board finds that his sleep apnea had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for sleep apnea is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.