Citation Nr: 21032642 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-48 784 DATE: May 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's OSA had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for OSA have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to April 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for sleep apnea. In May 2014 the Veteran filed a notice of disagreement (NOD) and in August 2016 the RO issued a statement of the case (SOC). In September 2016 the Veteran filed a substantive appeal (via VA Form 9). In a December 2018 decision, the Board denied service connection for sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans' Claims (Court). In August 2019, while the matter was pending before the Court, the Veteran's attorney and VA's General Counsel filed a joint motion for remand (JMR). In September 2019, the Court granted the parties' motion and remanded the matter for action consistent with the JMR. In April 2020 and January 2021 the Board remanded the Veteran's claim for additional development. As the benefit sought is being granted in full, consideration of whether the agency of original jurisdiction complied with the Board's remand instructions is unnecessary. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). OSA 1. In December 2012, a private physician diagnosed with OSA. Thus, a current disability has been demonstrated. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). As to the in-service injury or disease element, the Veteran's service treatment records (STRs) are negative of complaints, treatment, or findings of OSA. However, in a December 2012 letter, the Veteran's son with the initials R.R. stated that he lived with the Veteran his entire life and observed him waking up in the middle of night and snoring loudly. The Veteran's son with the initials W.R. stated that he witnessed the Veteran abruptly waking up and snoring. The Veteran also stated that he had sleep issues since his time on active duty and awakens in the night several times. In a November 2012 letter, the Veteran's ex-spouse stated that she witnessed him snoring. In an October 2019 letter the Veteran's fellow soldier with the initials D.J. stated that he witnessed the Veteran gasping for air and other sleep irregularities. Given the nature of the symptoms, the lay statements regarding the in-service onset of symptoms are competent and credible to support the Veteran's claim. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current OSA and his in-service sleep symptoms or whether those symptoms were early manifestations of the subsequently diagnosed sleep apnea. A March 2014 VA examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected posttraumatic stress disorder (PTSD). The VA examiner explained that there is no pathology that stress leads to the blocking of the airway resulting in obstructive sleep apnea. Also, an August 2020 VA examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The VA examiner explained that sleep apnea and PTSD are considered to be two distinct and separate medical conditions. As neither the March 2014 nor the August 2020 VA examiners opined as to whether the Veteran's sleep apnea was related to his military service on a direct basis, they are not relevant to the direct theory of entitlement on which service connection is being granted. The Veteran is competent to report the onset and persistent nature of his sleep-related symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (the Veteran is competent to report factually observable occurrences in-service and the timing of the observable symptoms of his disability). There is no evidence of record to indicate that the Veteran's statements as to his sleep-related symptoms in service are not credible. Therefore, the Veteran's statements as to having sleep symptoms in and since service are competent and credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). While the Board could again remand the claim for yet another medical opinion to consider whether the Veteran's sleep apnea is related to his service on a direct basis, such action could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is sufficient to decide the claim, as the symptoms described by the Veteran and other lay witnesses in service were the same ones that were the basis for the post service diagnosis, reflecting that the sleep symptoms were early manifestations of the subsequently diagnosed sleep apnea. Maples v. Wilkie, No. 18-2016, 2019 U.S. App. Vet. Claims LEXIS 199 (Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For the foregoing reasons, the weight of the evidence supports a relationship between the Veteran's diagnosed OSA and service, specifically, that the Veteran had sleep-related symptoms in service that were indicative of sleep apnea which was untreated and undiagnosed until years after service. Entitlement to service connection for OSA is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.