Citation Nr: 21032306 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-34 090 DATE: May 26, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Board finds that his obstructive sleep apnea began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1966 to April 1968, which includes service during the Vietnam War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). The appeal was remanded in January 2018, June 2019, and October 2020 for further development. The appeal has now returned to the Board for adjudication. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran contends that he has obstructive sleep apnea that is etiologically related to his active duty service, including his exposure to herbicide agents during service. Specifically, in June 2016 correspondence, the Veteran asserted that his sleep patterns were constantly interrupted during service and never fully adjusted back. He also reported that he has been receiving treatment for sleep apnea for many years, and that he feels tired and sleepy during the day. A May 2014 VA pulmonary record documents that the Veteran has a diagnosis of severe obstructive sleep apnea (OSA) with nocturnal arrythmias. A March 2018 VA examination also noted a diagnosis of OSA. The Board therefore accepts that the Veteran has a current disability. Service treatment records do not document complaints, symptoms, or treatment of OSA. However, as noted above, the Veteran asserts that his sleep apnea began in service. The Veteran is competent to report that he experienced disrupted sleep patterns in service and that he continues to experience symptoms pertaining to his sleep since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these statements to be probative and credible. In an April 2021 medical opinion, the VA examiner concluded that it was as likely as not that the Veteran's sleep apnea was due to service. In support of the opinion, the examiner referenced the Veteran's June 2016 lay statement and his medical history and explained that medical literature indicates OSA was recognized as a medical condition in 1965 but not recognized as a condition for the general population until the mid to late 1990s. Therefore, the Veteran could not have been diagnosed with sleep apnea until at least the late 1990s even though he may have been suffering for years with a sleep disturbance. He further explained that a review of medical literature reveals people with sleep disturbance may have Upper Airway Resistance Syndrome (UARS) which may be a variant or precursor to obstructive sleep apnea and that those with UARS suffer daytime hypersomnolence and sleep disturbances without having OSA, but with time may turn into OSA. The Board notes that April 2018, December 2019, and February 2021 VA medical opinions found that it was less likely than not that the Veteran's sleep apnea was due to service. However, these opinions relied upon the absence of any treatment or documentation in service of sleep apnea or the fact that sleep apnea is not recognized as a disease that is presumptively associated with exposure to herbicides. Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Moreover, the examiners also did not address or consider the Veteran's competent lay statements in formulating their opinions. Thus, the Board finds that these opinions are inadequate. Given the competent and credible lay evidence indicating that the Veteran's sleep apnea began during a period of active duty service, along with the April 2021 medical opinion, the Board finds that the most probative evidence indicates that the Veteran's sleep apnea had its onset during active duty service. (Continued on the next page) Therefore, the Board will resolve reasonable doubt in favor of the Veteran and grant the claim of entitlement to service connection for sleep apnea. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") J. NICHOLS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.