Citation Nr: 21030078 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-05 885 DATE: May 17, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT A medical nexus exists between a current diagnosis of sleep apnea and an in-service incurrence. CONCLUSION OF LAW The criteria for service connection sleep apnea have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from September 1995 to December 2003 and from March 2004 to November 2015. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in August 2020, and a transcript of the hearing is of record. 1. Service connection for sleep apnea is granted. At issue is whether the Veteran is entitled to service connection for sleep apnea. The results of an October 2016 sleep study indicate that the Veteran has a current diagnosis of sleep apnea. The Veteran has provided credible lay reports including sworn testimony during a personal hearing before the Board that he had difficulty sleeping for years during a period of service. See Transcript. In a November 2017 treatment record, the Veteran's treating physician indicated that the Veteran's sleep apnea was connected to the Veteran's years of difficulty sleeping. Therefore, the weight of the evidence indicates that a medical nexus exists between the Veteran's current diagnosis of sleep apnea and an in-service incurrence of difficulty sleeping, and the criteria for service connection have been met. Shedden v. Principi, 381 Vet. App. 1163 (Fed. Cir. 2004). In making this determination, the Board notes that the record contains two VA examinations that suggest that the Veteran should not be granted service connection. Nevertheless, the Board cannot afford these examinations any weight. The first examination conducted in April 2016 indicated that the Veteran did not have a current diagnosis of sleep apnea. This conclusion is directly contradicted by the objective results of the Veteran's sleep study, and the Board cannot afford weight to a bare conclusion of a medical provider without a factual predicate in the record. Miller v. West, 11 Vet. App. 18 (2007). The second examination in July 2017 conceded a diagnosis of sleep apnea, but the examiner opined that the Veteran's sleep apnea was unrelated to service; because: the examiner did not find the Veteran's lay reports of sleep trouble in-service credible; the examiner disapproved of VA's recognition of sleep apnea as a disability and the admittedly over-generous compensation that VA provides for sleep apnea; and that the Veteran's sleep apnea was due to obesity which did not occur until after separation from service. Unfortunately, the Board does not find these rationales to be adequate and cannot afford the opinion any weight. At the outset, the Board notes that the first rationale offered by the examiner is outside the scope of the examiner's role. It is the role of the Board as the ultimate finder of fact, not the examiner, to evaluate the credibility of the Veteran's lay statements. Smith v. Derwinski, 1 Vet. App. 235 (1991). It is the role of the examiner to indicate the medical significance, if any, of the Veteran's lay statements if the Board determines that they are true. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The second rationale is even further beyond the scope of a VA examiner. Any wisdom, or lack thereof, in VA's policies regarding which conditions are or are not recognized as disabilities for VA compensation purposes is unrelated to the facts, data, principles, and methods that medical opinions must be based on. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Finally setting these problems aside, the examiner's opinion is essentially that the Veteran, regardless of his reports of having difficulty sleeping for years, could be sleep apnea free upon separation from service in November 2015 and rapidly developed full blown sleep apnea less than a year later in October 2016. The examiner simply has not provided a reasoned medical explanation explaining why it is likely that the Veteran's sleep apnea which the Veteran's treating physician characterized as chronic could have developed so rapidly, and the Board cannot afford the opinion any weight. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Even if the Board were to accept this rationale as adequate moreover, the presence of the treating physicians opinion that the Veteran's sleep apnea had its onset over the course of a number of years (and therefore during a period of service) is sufficient to place a reasonable fact finder in a state of equipoise, and the tie must go to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the weight of the probative evidence of record demonstrates a medical nexus between an in-service incurrence and a current diagnosis. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for sleep apnea is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Seaton 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.