Citation Nr: 21031338 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-09 184 DATE: May 21, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea is related to his military service. CONCLUSION OF LAW The criteria for entitlement to 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 active duty service in the U.S. Air Force from October 1960 to July 1988. A videoconference hearing was scheduled in December 2020. However, the Veteran requested to withdraw his hearing in a December 2020 correspondence. Accordingly, his hearing was cancelled, and his hearing request is considered withdrawn. 1. Entitlement to service connection for sleep apnea, to include as due to exposure to Agent Orange and/or as secondary to service-connected PTSD, is granted. The Veteran contends that he has sleep apnea that is directly related to service, specifically exposure to Agent Orange while in Vietnam. See October 2015 VA 21-526EZ, Fully Developed Claim (Compensation). Alternatively, the Veteran contends that his sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD). The Veteran's military service records, including his DD-214, confirm his service in Vietnam. See DD-214; see also October 1965 Performance Report. Having served in Vietnam during the applicable time period, the Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). At the outset, the Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include sleep apnea. Therefore, service connection for sleep apnea cannot be granted on a presumptive basis. Turning to direct service connection, service connection may be granted for a 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). First, the Board notes that the Veteran has a diagnosis of obstructive sleep apnea according to an August 2015 sleep study. Therefore, the first element of service connection, a diagnosis, has been met. Second, with respect to an in-service incurrence, as noted above, the Veteran contends that his sleep apnea is directly related to his military service. Indeed, his wife reported that the Veteran has had sleep problems the entire time they've been married, which is over 35 years. See November 2016 correspondence. Given the Veteran and his wife's competent and credible lay statements that he has had issues with sleeping since service, the Board finds that the second element of service connection, an in-service incurrence, has been met. Therefore, the only remaining issue is whether a nexus may be established. The evidence against the claim includes an April 2016 VA opinion. In April 2016, the VA examiner concluded that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The examiner reasoned that obstructive sleep apnea's primary risk factor is obesity and specifically abdominal girth. The BMI of the Veteran shows significant obesity with a BMI around 35. His girth is noted to be 46 inches or more. In addition, the examiner noted that the Veteran did not develop sleep apnea until age 70. Age is another risk factor to developing the disease. In an article on diabetes and sleep apnea published in 2009, the following was noted: "The second major finding was that waist circumference was the only significant predictor of the presence of OSA (AHI =5) (15). The failure of neck circumference and BMI to contribute to the model is likely due to the restricted upper range of these variables in this sample compared with a community sample. Having a higher BMI, however, did increase the risk of severe OSA (AHI =30)." The examiner noted that this points to the fact that type II diabetes occurs more in the obese patient, thus putting them at risk for sleep apnea. The Board finds that the April 2016 VA opinion is inadequate. First, the April 2016 VA opinion did not address the Veteran's contention that his sleep apnea is directly related to service, specifically exposure to Agent Orange while in Vietnam, nor did the VA examiner address whether the Veteran's sleep apnea was aggravated by his service-connected PTSD. In addition, the VA examiner did not address the Veteran's wife's lay statements indicating that he has had issues sleeping for over 35 years. The April 2016 VA examiner also did not address the articles the Veteran submitted in November 2016 that suggest a link between his sleep apnea and mental health condition. In support of the Veteran's claim, in November 2016, a private physician, Dr. A. B., noted that an August 2015 diagnostic study confirmed presence of severe sleep apnea. The physician noted that, according to the Veteran's wife, the Veteran has had symptoms of sleep apnea since she has been married to him (for over 35 years). The private physician concluded that, considering the severity of his sleep apnea and presence of significant narrowing of the upper airways including neck size of 21 inches, it is reasonable to believe that the Veteran has had rather significant sleep apnea long before he was discharged from service in 1988. The Board finds the November 2016 private opinion by Dr. A. B. probative, because it is based on an accurate medical history, takes into account the Veteran's lay statements, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, a nexus between service and the Veteran's sleep apnea has been established. (continued on next page) Given the above, the Board finds that the preponderance of the evidence supports the Veteran's service connection claim for sleep apnea, and the claim is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.