Citation Nr: 21029968 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-58 815 DATE: May 17, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to November 1981. This matter is on appeal from an April 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. Sleep Apnea The Veteran contends that he is entitled to service connection for sleep apnea. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131. To establish service connection, the evidence must show: (1) the existence of a current disability; (2) an 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. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Veteran was provided with a VA examination in October 2017 in which the examiner noted a diagnosis of obstructive sleep apnea. Thus, the first element of Shedden is satisfied. Further, March 1973 service treatment records note that the Veteran was involved in a motor vehicle accident. During the February 2021 hearing, the Veteran discussed the car accident and stated that he sustained injuries from the accident as a passenger. Thus, the second element of Shedden is satisfied, as well. Throughout the appeal period, VA has received lay statements from friends and family who report witnessing the Veteran's complaints of fatigue and difficulty breathing at night from the late 1970s. The Board notes that lay persons are not competent to provide a diagnosis for sleep apnea, as this requires the expertise of a medical professional who can conduct a sleep study in a clinical setting. However, lay persons are competent to report readily observable symptoms, such as visible fatigue and difficulty breathing. See, e.g., Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). Further, the Board finds that these lay statements are credible reports of the history of the Veteran's symptoms. Thus, the Board finds these statements probative to the extent that they establish the history of the Veteran's readily observable symptoms. In November 2011, VA received a medical opinion from Dr. C.B., who opined that it is at least 50 percent probable that the Veteran's sleep apnea has been present since service. He discussed the lay statements from the Veteran's spouse, who reported that the Veteran stopped breathing while asleep in 1977. He noted that the stoppage of breathing during sleep is a common side effect of sleep apnea and stated that the records do not support another more likely initiation point of the sleep apnea. As the rationale reflects consideration of the nature of the Veteran's condition and his medical history, the Board assigns a high degree of probative value to this opinion. In April 2015, VA received a medical opinion from Dr. J.P., who opined that the Veteran's military service was at least as likely as not the cause of his sleep apnea and that it is at least as likely as not that he had undiagnosed sleep apnea prior to his separation from service. He noted that the Veteran was involved in a car accident in 1973 and stated that the Veteran reported a change in his ability to obtain restful sleep afterwards. He also discussed a second motor vehicle accident with trauma to the head, neck, back, and right shoulder. He noted that the Veteran reported being unable to get a good night's sleep from 1973 to the present. He also noted that the Veteran's wife reported noticing that he was not breathing in the middle of the night and hitting him to wake him up. Dr. J.P. also noted that many people who have had brain injuries suffer from sleep disturbances. As this rationale thoroughly addresses the nature of the Veteran's condition and his medical history, the Board assigns a high degree of probative value to this opinion. During the October 2017 VA examination, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that there are no medical records showing a diagnosis or treatment for sleep apnea or any sleep related condition in service. He also stated that there is no medical correlation between a motor vehicle accident causing or leading to sleep apnea. He noted that sleep apnea tends to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyles, body habitus, sinus conditions, upper respiratory conditions, neurological deficit, or idiopathic. While a lack of contemporaneous medical records may be a factor to consider and weigh against a Veteran's lay testimony, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). If lay evidence presented by a Veteran is ultimately found to be credible and competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. Id. at 1337. The Board finds no reason to doubt the credibility of the lay reports of difficulty breathing while asleep during service. As the rationale does not reflect consideration of these credible lay statements, the Board assigns a low to moderate degree of probative value to this opinion. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran's sleep apnea was incurred in service. Thus, having resolved all reasonable doubt in the Veteran's favor, the Board concludes that service connection for sleep apnea is warranted, and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.