Citation Nr: 21029725 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-55 316 DATE: May 14, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran's sleep apnea had its onset during wartime service. 2. Veteran exhibited symptoms of sleep apnea during active duty. CONCLUSIONS OF LAW 1. Sleep apnea was incurred in wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2005 to December 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared in front of the Board during a video conference hearing in October 2020. With respect to the Board hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the criteria for evaluation of the service connection, enquired as to whether there was additional outstanding evidence, and held the record open for 90 days. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The Board notes that in an April 2016 Notice of Disagreement, Veteran raised an issue of entitlement to an increased rating for a left knee disability. These issues have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 1. Entitlement to Service Connection for Sleep Apnea The Veteran contends that he has sleep apnea due to his active service and exposure to burn pits in the Southeast Asia theater. The evidence of record shows that Veteran's sleep apnea is attributable to active service. Pertinent Legal Criteria Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service). To establish a right to compensation for a present disability, a veteran must show: "(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" the so called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not for consideration. Because the Veteran had Gulf War service, the Board has considered the provisions of 38 U.S.C. § 1117. The law provides for a grant of service connection for a qualifying disability that is due to an undiagnosed illness or an unexplained multisystem illness. Here, the Veteran has a diagnosed sleep apnea. Sleep apnea is a recognized clinical diagnosis and not an undiagnosed illness or a multisystem illness. As such the provisions regarding Gulf War illness are not applicable. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). Direct Service Connection The Veteran was provided a December 2004 enlistment examination, but no discharge examination was provided. The enlistment examination evaluated Veteran's mouth, throat, and nose as normal. Veteran reported that he did not have a chronic cough or cough at night. Veteran reported that he did not have any ear, nose or throat trouble and never experienced shortness of breath as well. There were no complaints of fatigue or issues with sleeping reported by Veteran. In April 2005 a nursing triage adult initial assessment was made for Veteran. The assessment noted that Veteran did not report any respiratory complaints which included no snoring or coughing. Veteran did not make any complaints related to any disturbances of sleep or shortness of breath. In October 2005 Veteran was provided another examination. Veteran reported that he did not experience shortness of breath, no ear, nose, or throat trouble and no complaints related to his sleep or fatigue. Veteran was provided another examination in November 2005. Veteran's nose, mouth and throat were evaluated as normal. Veteran did not report any complaints of shortness of breath or sleep disturbances. An October 2006 medical record was provided to Veteran. The record stated that Veteran was obese, but that obesity was probably secondary to underlying pathology. There were no mentions if Veteran had any complaints or symptoms of sleep disturbance. An outpatient note was made for Veteran in December 2011. Veteran requested a sleep study stating that several people said that he "chokes in his sleep" and snores. The Veteran complained that he did not feel rested when he woke up and constantly felt tired even after sleeping approximately 8 hours. In February 2012 Veteran was provided a compensation and pension examination by the VA. The Veteran was examined for sleep apnea which the examiner did not diagnose. The examiner noted that the Veteran had persistent daytime hypersomnolence which was noted as a symptom, finding or sign attributable to sleep apnea. The examiner did not perform a sleep study on Veteran. The examination noted that there were other significant diagnostic test findings and/or results, but none were provided. The examiner stated that Veteran's daytime hypersomnolence limited his ability to perform tasks that required extreme mental alertness. Further the examiner opined that it was less likely as not that the Veteran's current sleep apnea problem is proximately due to or caused by military service. The examiner's rationale was that the Veteran's service treatment records contained no sleep related problems and that Veteran did not allege any until his outpatient visit in December 2011. During a December 2013 sleep medicine consult a note was made regarding Veteran's diagnosis. The note stated that Veteran had been officially diagnosed with severe obstructive sleep apnea at an outside facility on February 25, 2013. Veteran was provided additional testing during an outpatient visit in May 2014. Veteran was provided a sleep polysomnography report for CPAP (continuous positive airway pressure) titration. It was recommended that Veteran's obstructive sleep apnea be treated with CPAP therapy. In May 2015 the Veteran was provided with a VA examination. The examination stated that the Veteran's file was reviewed and that an in-person examination was conducted. The examiner diagnosed obstructive sleep apnea. The examiner noted that Veteran stated to have daytime somnolence, fatigue, heavy snoring and witnessed apnea since 2008-2009. The examiner noted that Veteran was experiencing significant improvements in his symptoms since being provided a CPAP machine. The examiner stated that without CPAP Veteran would experience excessive sleepiness that would disrupt his daily functioning. During the examination the examiner noted that Veteran claimed that his sleep apnea was related to Gulf War exposure, but the examiner stated that sleep apnea is a disease with a clear specific etiology and not an undiagnosed illness. The examiner then cited a publication and stated that there was no increased risk of obstructive sleep apnea that was found to be associated with service in the Gulf War. In September 2017 the VA received a buddy statement from a coworker that worked in the same platoon as Veteran. The coworker stated that he was stationed in the unit from June 14, 2006 to December 11, 2010. The coworker stated that he slept in the same tent as Veteran and did not hear or notice any loud snoring. Coworker explained that the two were in proximity of each other. The coworker stated that he was deployed to Forward Operating Base Kalsu, in Iraq, with Veteran. The coworker stated that this deployment was roughly March 10, 2007 through June 11, 2008. The coworker stated that him and the Veteran had the same work shifts which allowed them to be on the same sleep cycles. The coworker stated that he heard Veteran's loud, frequently abnormal, snoring on a nightly basis. The living quarters were reportedly a small 2-man trailer with 2 twin beds and the coworker stated one could hear the other without difficulty. The Veteran appeared before the undersigned Judge for a videoconference hearing in October 2020. Veteran testified that he was exposed to burn pits as part of his military occupation specialties at FOB Hammer and Camp Kalsu. Veteran stated that he worked directly next to the burn pits 12 hours a day, 7 days a week. Veteran reported that the burn pits would cause Veteran to cough regularly and would present a generally unpleasant smell to be around. Veteran testified that as soon as he got out of the military he took a job contracting and promptly lost it because he was falling asleep at work. The Veteran reported he got another job and he lost it again because he could not stay awake. After that Veteran explained that a friend of his told him to get a sleep study done to which he was diagnosed with severe obstructive sleep apnea and eventually received a CPAP to help. In order to provide more evidence for the Veteran's case the Veteran stated he would submit a private nexus opinion and additional lay statement from his mother. The Veteran submitted a private medical opinion by his doctor in October 2020. The doctor explained that Veteran served in an area where he was exposed to many types of chemicals for a prolonged period of time and cited a published report. The report stated that the prevalence of sleep apnea was highest among Gulf War Veterans when compared to other Veteran groups. The doctor also cited a study about the risk for obstructive sleep apnea in Veterans with Gulf War illness. The doctor opined that it more probable than not that Veterans illness was at contributed to his service in the military and had resulted in disability. The Veteran submitted a lay statement from his mother as well in October 2020. The Veteran's mother stated that Veteran lived with her and his father until the Veteran left for boot camp. She reported that the family liked to vacation and tent camp together. She stated that she never saw any issues with snoring or fatigue with the Veteran. After discharge Veteran lived again with his mother and father. She stated that Veteran was fatigued all the time and unable to stay awake. She stated that she would witness Veteran falling asleep immediately if he sat down and would frequently stop breathing. Veteran's mother also testified to Veteran losing his job due to him not being able to stay awake. She did report that once Veteran was provided a CPAP machine that he improved drastically and allowed him to take care of his daughters. The Board notes that the Veteran is competent to state he had difficulty in service and thereafter. The Board notes that lay evidence can be competent to establish a diagnosis when the layperson is describing symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The medical opinions on record do not provide much probative value in either for or against Veteran's case. The February 2012 VA examination noted that Veteran had a symptom of sleep apnea but did not provide a sleep study. The examination noted that there were significant findings but did not state what they are. The May 2015 VA examination provided a diagnosis of obstructive sleep apnea, but the rationale for the negative nexus opinion is flawed. The examiner's rationale seems to focus on if sleep apnea is an undiagnosed illness for Veteran and that there was no increased risk of sleep apnea found to be associated with service in the Gulf War. The examiner's rationale is broad and seemingly focused on the presumptive service connection language which was not a matter in this case. The examination relied on a sleep report from 2013 which diagnosed Veteran with obstructive sleep apnea. The examination relies on the publication to provide a negative nexus opinion rather than any findings by the examination. Therefore, this opinion provides little probative value. Finally, the October 2020 private opinion provided a positive nexus opinion for Veteran. The private opinion is the only one to mention that Veteran was exposed to the burn pits where he was exposed to chemicals for a prolonged period of time. While the examiner pointed to this fact and cited a study and publication in support, it only provides a little more probative value than the previous two examinations. The opinion does not provide any tests, results, or other rationale for why these chemicals caused Veteran's sleep apnea. Veteran's service treatment records only go to October 2006 while according to Veteran's coworker he was deployed to the camps where burn pits were located from March 2007 to June 2008. Veteran left service in 2010, therefore there is a large gap in available evidence. The Veteran's statements and buddy statements fill in that particular gap before the December 2011 medical note. The Veteran's buddy statement is competent and credible. The buddy was in proximity when Veteran started to exhibit his symptoms. The buddy is not asserting any knowledge beyond the realm of a normal person. A person's sudden abnormal snoring habits is something another can easily attest to. The buddy statement is credible in that he was with Veteran long enough to make that determination. At the time of receiving the letter, Veteran's buddy is still in active service and is not an interested party. Further statement is aligned with Veteran's own testimony. Therefore, since this statement provides evidence that a layperson can easily attest to and largely fills in the gap that the service records do not fill, it is highly probative. While the service treatment records are not available from this time period, the statement can serve as a report of in-service symptoms. While the mother is an interested party, her statement as well provides probative weight. The Veteran's mother reported that Veteran lived with her and his father until he left for bootcamp. Further the mother stated that the family loved to vacation and tent camp together. She stated that Veteran never had any issues with snoring or fatigue. Once he returned from active service is when she saw the symptoms. The mother testified to symptoms that were easily understood by a layperson such as fatigue and trouble staying awake. The mother's statement is competent, but not as credible as the previous statement due to her being the mother of Veteran. However, her statements do not seem to be at odds with any of the medical examinations or available records. The earliest VA medical examination in 2012 noted that Veteran had persistent daytime hypersomnolence. Therefore, even though she is an interested party due to her relationship with Veteran, this statement provides some probative weight. Her statement shows that Veteran was experiencing persistent daytime sleepiness as soon as he returned from active duty. Since loud abnormal snoring and excessive daytime sleepiness are symptoms of sleep apnea that can be easily described by a layperson, these statements have probative value. While the lay evidence is inconsistent with the report of good health and generally silent of history of symptoms associated with sleep apnea until 2011. The Board finds that the Veteran's statements combined with the buddy statements and positive private medical opinion he has submitted outweigh the negative opinions of the VA examiners and available service treatment records. While the service records are silent to any complaints, they are unavailable during the time period that Veteran would be experiencing issues related to sleep apnea. The fact that Veteran sought out treatment within a year after active duty for a disability he could remain unaware of much longer adds more weight to his own statements as well. Therefore, the more credible and probative evidence establishes that the Veteran's current sleep apnea was manifest during service. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is for the Veteran's claim of entitlement to service connection for sleep apnea. The benefit sought on appeal is accordingly granted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Konieczny, Adam 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.