Citation Nr: 21030759 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-07 148 DATE: May 19, 2021 ORDER The claim of entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea began during active 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 had honorable active duty service in the United States Army from June 1979 to June 1999. He received the Southwest Asia (SWA) Service Medal with three Bronze Service Stars, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A written transcript of that hearing has been prepared and is associated with the evidence of record. The Board notes that the Veteran provided additional testimony regarding his sleep apnea claim as permitted during a hearing in April 2021 with VLJ Susan Kennedy. In November 2019 and June 2020, the Board remanded the issue of service connection for sleep apnea to the RO for additional development. The Board concludes that there has not been substantial compliance with its prior remand directives due to inadequacy of the VA medical opinion obtained. Additionally, on return of this matter to the Board, the Veteran challenged the competency of the medical examiner's qualifications. See Francway v. Wilkie, 940 F.3d 1304, (Fed. Cir. 2019). The Board notes that it could remand for additional development to address these shortcomings in the record, however, the Board finds that there is no prejudice to the Veteran in adjudicating the appeal based on the evidence of record as the Board is granting the Veteran's service connection claim in full. 1. The claim of entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea began during active service. Alternatively, he contends that his sleep apnea condition is secondarily related to his service-connected sarcoidosis or aggravated by his service-connected posttraumatic stress disorder (PTSD). See Board Hearing Transcripts. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has a current diagnosis of obstructive sleep apnea. See e.g., December 2018 sleep study. As such, the first element of service connection is met. Next, the Board notes that while the Veteran's service treatment records (STRs) do not include complaints of sleep disturbance during active service, the evidence of record establishes that the Veteran experienced "heavy snoring while in service" and that he experienced significant daytime drowsiness and fatigue, which led to at least one motor vehicle accident during active duty. The Veteran testified that his former spouse (to whom he was married during his active service) told him he was always waking up choking and that he snored heavily. The Veteran also provided credible lay evidence that he was not aware that sleep disturbances could be due to a medical condition (such as sleep apnea) and did not know to seek treatment for such symptoms until after service. See e.g., April 2021 Hearing Transcript. The Board finds the Veteran's lay statements competent, credible, and probative. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay witnesses are competent to testify as to their observations). As such, the Board finds that the Veteran had in-service symptoms of a sleep condition and finds the second element of service connection met. The remaining question is whether the Veteran's sleep apnea is related to his active service. The medical evidence of record shows that the Veteran sought medical assessment of his symptoms of daytime drowsiness no later than 2001, complaining of symptoms that had lasted for at least the prior six months, which was soon after his 20-year period of active service. At this time, the Veteran was recommended for a sleep study. See November 2001 VA Medical Center (VAMC) pulmonary note. However, a subsequent pulmonology treatment record from July 2003, notes that the Veteran "was supposed to have been set up with a sleep study in 11/01, but this did not occur." According to this record, Veteran again reported being "fatigued during the day" and the clinician noted that the Veteran "does not feel refreshed after sleeping at night. He snores very loudly." The Veteran was eventually formally diagnosed with sleep apnea by 2007. The Board acknowledges that the medical evidence of record contains negative nexus opinions. The Board previously determined that the January 2020 VA examination opinion was inadequate as the examiner did not address the Veteran's lay statements concerning his in-service symptoms. In July 2020, following the Board's remand, a VA clinician provided an addendum opinion but concluded that, despite lay statements made by the Veteran regarding his symptoms since service, there was "a lack of objective evidence" of a direct connection between the Veteran's sleep apnea and service. The examiner indicated that a positive nexus to service could not be provided "without concrete and longitudinal evidence to bridge the timeline gap[.]" from the estimated onset in 1999 to formal diagnosis in 2007. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA medical opinions discounted lay evidence regarding the in-service onset of relevant symptoms of the claimed sleep condition and the ongoing post-service symptoms of same. Lay evidence is not incompetent merely for lack of contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (2009); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336, (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence."). Even beyond the failure to adequately consider the Veteran's lay evidence, the VA addendum opinion failed to address the medical evidence of ongoing daytime fatigue and heavy snoring noted by the Veteran's pulmonologist in July 2003. As such, the Board finds the VA opinion evidence to lack probative value. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's sleep apnea arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the Veteran's sleep apnea disability began in service and continued since. Thus, service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that in support of his appeal, the Veteran provided medical treatise evidence and a letter from a physician with the initials F.G. concerning the contention that his service-connected sarcoidosis caused or aggravated his sleep apnea. The Veteran also provided testimony that his PTSD may aggravate his sleep apnea. However, as the Board is granting service connection on a direct basis, such theories of service connection are moot. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.