Citation Nr: 21031702 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-18 277 DATE: May 24, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his obstructive sleep apnea began during his active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training from May 2007 to August 2007 and June 2011 to August 2011, with additional service in the National Guard. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). As noted in the January 2020 Board remand, the Veteran initially requested a hearing before the Board on his April 2016 VA Form 9. A hearing was scheduled in January 2019, but he did not report. A December 2018 report of contact indicates that he could not attend the scheduled January 2019 hearing and instead asked that it be rescheduled several days earlier in January 2019. The Board sent a letter to the Veteran in December 2019 to clarify whether he would like to appear for a hearing, but he did not respond. The Veteran's representative has submitted multiple Informal Hearing Presentations without requesting a hearing, and the Veteran has not renewed his request for a hearing. As such, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(d). The Board further observes that some of the development conducted pursuant to the January 2020 Board remand is inadequate. However, in light of the full grant of benefits awarded herein, another remand is not required. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service connection for sleep apnea Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) 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, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection is presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran contends that his sleep apnea symptoms, such as snoring, began during service and have continued since then. See July 2013 Statement in Support of Claim. He contends that he was seen during service for a sleep disorder and that he believes his in-service treatment for bronchitis, sleeping in damp conditions, and inhaling smoke and dust resulted in his sleep apnea condition. See June 2013 Notice of Disagreement. A January 2013 sleep study includes a diagnosis of moderate obstructive sleep apnea. Accordingly, the first element for service connection has been established. As to the in-service disease or injury element, the Veteran reports that, during service, he experienced symptoms of sleep apnea, such as snoring and respiratory issues. His service treatment records (STRs) do not reflect clear complaints of, or treatment for, sleep apnea but do note complaints of respiratory issuesdiagnosed as bronchitisin August 2011. The Veteran's separation examination from August 2011 notes his prior bronchitis and includes a "snore/apnea" note with a negative sign characterized as a circle with a line through it (Ø). The Veteran is competent to report factually observable occurrences in service and the timing of the observable symptoms of a disability, as evidenced by his reports of snoring and respiratory issues. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the in-service disease or injury element is met. Accordingly, this case turns on the remaining element of service connection, which is whether the Veteran's sleep apnea is related to, or had its onset in, his active service. On this question, there is evidence both in favor and against the claim. The Veteran was first examined in December 2012, and the examination report and medical opinion appear to have been completed in February 2013, after the completion of the January 2013 sleep study. The examination report confirmed a diagnosis of obstructive sleep apnea, and the Veteran reported excessively loud snoring as reported by his partner, and persistent daytime hypersomnolence was noted. The examiner, who reviewed the claims file, opined it was at least as likely as not that the Veteran's sleep apnea was related to his serviceand that it was more than likely that the Veteran was having symptoms of sleep apnea while in service. The diagnosis of sleep apnea was confirmed in January 2013. A March 2016 VA addendum opinion indicated that it was less likely than not that the Veteran's sleep apnea was related to his service. In providing this opinion, the examiner stated that the Veteran's separation examination from August 2011 noted "no snoring/apnea" and that the Veteran's sleep apnea was diagnosed 17 months after service. Pursuant to the January 2020 Board remand, additional VA addendum opinions were obtained in March 2020 and September 2020. The Board asked that consideration be given to the Veteran's documented report of bronchitis in his STRs. The March 2020 examiner opined that it was less likely than not that the Veteran's sleep apnea was related to his service because he was not diagnosed with sleep apnea, or given a sleep study, in service. The examiner stated that the Veteran did not have any complaints of snoring or apnea at separation, as the circle with a diagonal slash symbol used on his examination is one commonly used in medicine to mean "none, no, and/or negative." In rendering this opinion, however, the examiner did not appear to give any consideration to the Veteran's contentions. A second addendum opinion is of record from September 2020. The examiner reported that they were instructed by the RO to presume that the Veteran did report experiencing snoring/apnea during his August 2011 separation examination. The examiner opined that it was less likely than not that the Veteran's sleep apnea was related to his service. The examiner appeared to disregard the instruction from the RO and stated that the separation examination report was completed by the examining physician and that the use of the symbol Ø was used commonly in medical records and not commonly used by the general population. Again, the examiner failed to consider the Veteran's own contentions regarding the onset of his sleep apnea symptoms and what he experienced during and since service. Given the evidence of record and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's obstructive sleep apnea onset during service and has continued since then. While sleep apnea was not documented in the Veteran's STRs, he did report respiratory issues and described snoring during serviceand asserts that these symptoms have continued since then. The VA addendumand negativeopinions of record are not persuasive, as they all failed to consider the Veteran's competent reports of relevant symptoms beginning in service. The Board accords more probative weight to the December 2012 VA examination and the resulting February 2013 opinion, which include a positive nexus opinion and are the only medical conclusions of record that give consideration to the Veteran's reports of sleep apnea symptoms beginning in, and continuing since, his service. In view of the totality of the evidence, and resolving any reasonable doubt in the Veteran's favor, the Board concludes that his obstructive sleep apnea symptoms onset during service and have continued since then. Accordingly, in resolving reasonable doubt in the Veteran's favor, service connection for obstructive sleep apnea is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.