Citation Nr: 21032871 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 18-53 018 DATE: May 28, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's currently diagnosed sleep apnea had its onset during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from August 2000 to July 2008 and from August 2012 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board observes that the Veteran submitted additional lay and medical evidence after the RO's adjudication in the September 2018 Statement of the Case (SOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for sleep apnea 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; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that he currently has sleep apnea that is related to, or caused by, his active service. As an initial matter, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea. See July 2014 private treatment record; October 2014 VA examination report. Next, the Board finds that the Veteran had sleep disturbance symptoms during active service. In an August 2005 Post-Deployment Health Assessment, the Veteran endorsed still feeling tired after sleeping. Additionally, in lay statements dated October 2018, fellow servicemembers R.C. and N.Y. wrote that they observed the Veteran's loud snoring during service. Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran's in-service sleep disturbance symptoms and his currently diagnosed sleep apnea. On review, the Board finds that the evidence is in equipoise as to whether the Veteran's currently diagnosed sleep apnea had its onset during active service. First, the Board finds the lay evidence of sleep disturbance symptoms during and since active service to be highly probative. During the May 2021 Board hearing, the Veteran testified that he was told by friends and his shipmates that he snored loudly, and he reported that he was not getting restful sleep, was very fatigued, and had constant headaches throughout his first period of active service. When he returned from deployment in 2013, the Veteran reported that he had an apneic episode where he was awakened during the night and could not breathe. The Veteran's lay reports of symptoms are further corroborated by the October 2018 lay statements by fellow servicemembers R.C. and N.Y., who wrote that they observed the Veteran's loud snoring during service. N.Y. also recalled the Veteran's frequent complaints about being tired and often having headaches, which the Veteran attributed to his problems sleeping. The Board has no reason to doubt the credibility of these lay reports, and it affords them great probative value. Second, the Board acknowledges that in a June 2008 VA general medical examination report, the VA examiner noted that the Veteran did not have a history of sleep apnea symptoms, and in a September 2010 VA primary care initial evaluation note, the Veteran denied severe snoring. However, the Veteran had another period of active service after these records were rendered (from August 2012 to August 2013), so the Board affords the findings little to no probative weight. Third, the Board finds the March 2015 VA medical opinion inadequate. The March 2015 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, reasoning, in part, that "[n]o event or exposure in military service causes sleep apnea" and that the Veteran denied sleep issues in Reports of Medical History rendered after endorsing "still feeling tired after sleeping" in his August 2005 Post-Deployment Health Assessment. The VA examiner further wrote, "Sleep apnea rarely resolves, making the likelihood that the single reported symptom as a reflection of sleep apnea, which then somehow resolved for years, then reappeared, very unlikely." However, the March 2015 VA examiner failed to address the Veteran's endorsement of frequent or severe headaches in a May 2008 Report of Medical History. Notably, the Veteran testified during the May 2021 Board hearing that he was very fatigued and had constant headaches throughout his first period of active service, and in an October 2018 lay statement, the Veteran's fellow servicemember, N.Y. recalled that the Veteran would frequently complain about being tired and often having headaches. Moreover, as discussed above, the Veteran had a second period of active service from August 2012 to August 2013. It is unclear whether the March 2015 VA examiner considered the possibility of a nexus to the Veteran's second period of active service, given her reliance on service treatment records predating that period of service. For these reasons, the Board finds the March 2015 VA medical opinion inadequate and affords it little to no probative value. Fourth, the Board finds it highly significant that the Veteran was diagnosed with sleep apnea (already to a moderate degree) after a sleep study in June 2014, less than 1 year after his separation from active service in August 2013. See July 2014 private treatment record. This medical evidence tends to support an in-service incurrence of sleep apnea. (Continued on the next page) Based on the foregoing, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.