Citation Nr: 21032055 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-58 480A DATE: May 25, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, sleep apnea is as likely as not related to his service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.159. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2010 to June 2014. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to service connection for sleep apnea 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, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). To establish service connection 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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Sleep apnea The Veteran contends that he developed sleep apnea while he was in service. The Veteran's service treatment records (STRs) show that he first sought treatment for sleep disturbances in August 2013. An October 2013 STR notes that the Veteran reported "terrible sleep" and his wife reported that he snores and wakes up a lot. In October 2013, the Veteran underwent a sleep study. The study noted mild to moderated occasional snoring. The examiner determined that the Veteran suffered from insomnia. He was provided steps to assist his sleep hygiene, referred to a psychiatrist for evaluation of PTSD, and referred to a dentist for bruxism. A March 2014 service treatment record notes that the Veteran stated that he was waking up every two hours startled or trying to catch his breath before he received medication. In June 2015, the Veteran underwent a sleep study in which he was diagnosed with sleep apnea and was prescribed treatment with an autotitrating CPAP device. In August 2015, a VA contractor completed a sleep apnea disability benefits questionnaire (DBQ) and noted that the Veteran was diagnosed with sleep apnea. A December 2015 VA DBQ based on a review of the Veteran's file, found it less likely than not that the Veteran's sleep issues in November 2013 were etiological to his current sleep apnea. At his March 2021 hearing, the Veteran testified that after his 2013 sleep study he tried to obtain a follow up sleep examination before separating from service but was told to do so through the VA. He testified that he was unable to obtain a new sleep study through VA immediately after service. This is confirmed in a December 2015 VA medical record that documents that the Veteran had problems coordinating assessments to apply for service connection for sleep apnea. Additionally, the Veteran's wife submitted a statement in December 2015 that the Veteran had sleep apnea while he was in the Army. She stated that she saw him stop breathing during the night while he was in the Army and that his sleep apnea got worse after he left the Army. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board finds the Veteran credible to report that his sleep apnea began in service and has continued since the present time. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify symptoms related to sleep apnea, and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. In sum, the Veteran has competently and credibly reported that his sleep apnea had its onset during his active service, and has continued since that time, and that he attempted to obtain a follow up sleep examination before separating from service. Further, the Veteran was diagnosed with sleep apnea within one year following service. Overall, given the Veteran's credible testimony and the close proximity of his sleep apnea diagnosis to his separation from service, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals J. Morgan, Attorney for the Board Department of Veterans Affairs 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.