Citation Nr: 21030351 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-66 974 DATE: May 18, 2021 ORDER Entitlement to service connection for sleep apnea to include as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the competent evidence of record reasonably supports a finding that obstructive sleep apnea had its onset in service or is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea to include as secondary to service-connected posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1996 to November 2006. In November 2020, the Veteran testified at a virtual hearing before the undersigned. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for sleep apnea to include as secondary to service-connected posttraumatic stress disorder (PTSD) The Veteran contends that although he was diagnosed with sleep apnea after his military separation, it had its onset during service. Post-service treatment records show the Veteran was diagnosed with obstructive sleep apnea in May 2010. A June 2014 VA sleep apnea examiner noted the Veteran's diagnosis of sleep apnea that requires the use of a continuous positive airway pressure (CPAP) machine. The examiner opined it was less likely than not the Veteran's sleep apnea is proximately due to or the result of the Veteran's service-connected PTSD. The rationale provided was that obstructive sleep apnea does not cause obstructive sleep apnea. The examiner stated the Veteran's sleep apnea is caused by upper airway obstruction at the level of the soft palate which relaxes during sleep and causes obstructive problems to the upper airway at that level. The examiner stated the condition is related to obesity and the Veteran's overweight condition most likely contributes to his sleep apnea. An August 2020 VA sleep medicine consult reflects the Veteran reported his ex-wife and children complained about his snoring since active duty. The neurologist stated that based on reports of snoring while on active duty, and the onset of relatively severe daytime sleepiness after only mild weight gain and 4 years out of service, it is at least as likely as not that some degree of obstructive sleep apnea was present on active duty. The physician stated that the lack of objective testing from the Veteran's time on active duty prevents the opinion from being more than speculation. In support of his claim, the Veteran submitted several buddy statements attesting to his sleep apnea symptoms in service and after service. In a November 2019 statement, the Veteran's ex-wife stated that after he returned from Iraq in January 2006, he started to have difficulty staying asleep, loud snoring, and episodes of not breathing. The Veteran's sister, in an August 2020 statement, stated that during a visit with the Veteran at Fort Meade, MD in June 2006 after he returned from Iraq, she noticed the Veteran snored and slept on the couch a lot, and also complained about having a lack of sleep. She also stated the Veteran had difficulties staying asleep, had episodes of not breathing while sleeping, and had morning headaches during her visit making it hard for him to do anything with her. Lastly, in a June 2020 statement, the Veteran's daughter stated that when he returned from Iraq, he slept a lot and snored very loudly, causing her mother to sometimes sleep on the couch. She also stated the Veteran has had difficulties staying asleep and experienced episodes of not breathing, to the point she thought he had died. During the November 2020 Board hearing, the Veteran testified that during service he began to snore very loudly, and his wife would complain and sleep in another room. He also reported he was always tired, would get headaches, and people would tell him that he would stop breathing during his sleep. After reviewing the record, including the medical and lay evidence, the Board concludes that the Veteran's diagnosed sleep apnea had its onset during the Veteran's active duty service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Despite the June 2014 VA examiner's medical opinion, and the rationale provided therein, the Board finds that the opinion only addresses whether the Veteran's sleep apnea is secondary to his service-connected PTSD disability. And although the VA examiner attributed the Veteran's sleep apnea at the time to his being overweight, the Board finds that does not preclude a finding that the signs and symptoms of the claimed disability may had onset in service. Lastly, the Veteran's VA physician noted a mild weight gain four years after service and still found it at least as likely as not the Veteran's sleep apnea began in service based on the Veteran's report of symptoms. The Veteran's testimony, and the lay statements provided by his family members, show that the Veteran's sleep apnea symptoms began in service and continued after service. All of the lay statements noted that the Veteran had excessive sleepiness, snored loudly, had difficulty staying asleep, and had periods of time where he stopped breathing during his sleep. In viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is in relative equipoise (evidence for and against the Veteran's claim is essentially equal), the benefit-of-the-doubt rule applies and entitlement to service connection for sleep apnea is granted. 38 U.S.C. § 5107 (b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.