Citation Nr: 21039902 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-54 244 DATE: July 1, 2021 ORDER The claim of entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The preponderance of the evidence establishes that the Veteran's sleep apnea had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110,1131 (2018); 38 C.F.R. § 3.102 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to November 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in March 2016. The Veteran provided testimony before the Undersigned Veterans Law Judge at a teleconference hearing in June 2021. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303(a) (2020). 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, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303 (2020). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for OSA. The Veteran seeks entitlement to service connection for OSA. He contends that the condition first manifested during active duty service. The Board also notes that the Veteran has, at times, asserted additional theories of entitlement, to include as a result of exposure to environmental hazards while in service in Southwest Asia, and/or as secondary to service-connected disorders. The Board need not discuss these other theories of causation as it can grant the benefit sought on a direct incurrence basis. Indeed, for the reasons explained below, the Board resolves doubt in the Veteran's favor and finds that the evidence is at least in equipoise that his severe OSA had its onset during service. As an initial matter, the record shows that the Veteran has a current diagnosis of severe OSA. Of record is a VA July 2015 sleep study which showed severe OSA. Service treatment records (STRs) are negative for complaints, treatment, or diagnosis of sleep apnea or sleep problems. The first clinical report of severe OSA is in the aforementioned VA sleep study report of July 2015. Post service treatment records reflect a long history of sleep disturbance. Most often, this problem was noted in reference to treatment for his service-connected mental health disorder. It is noted, however, that when being seen in October 2005, the Veteran reported that he was unable to sleep at night as he got short of breath (SOB). Subsequently dated records reflect use of a CPAP machine on a nightly basis with good results. Also of record is an August 2015 statement as provided by N.D.R. She knew the Veteran prior to service as they went to high school together. They were together before service in 1982 and since, and she noted that prior to his time in service, he had no sleep issues. She noted that since knowing the Veteran they have spent many nights together. She note that he snored loudly and made gagging noises. She noticed that there were times when it appeared that he stopped breathing and would wake up gasping for air. He often came home from work so tired that he went directly to sleep. She convinced him to get the sleep study which showed that he had severe OSA. Since he started using the CPAP machine, his gagging and snowing had stopped. He still woke up sometimes during the night, but not as often as he did before. The Veteran testified in June 2021 that he continued to use the CPAP machine every night. He also recalled that he was often short winded while in Saudi Arabia. He did not rest and was often irritable and short tempered. He often snored and gasped for air. These symptoms of snoring, gasping for air in the middle of the night and being tired the next day, he first noted in service and continued until his ultimate diagnosis of sleep apnea. Of record is a March 2016 VA examination regarding the Veteran's sleep apnea. This examination addresses whether the Veteran's severe OSA meets the criteria for a chronic disability associated with exposure to environmental hazards while in Southwest Asia. It is of no probative value as to the current discussion regarding direct onset of OSA. In this case, it is noted that the Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Moreover, the Board finds these statements to be credible as they are supported a corroborating statement by his partner, N.D.R. Thus, based on the competent and credible lay statements from the Veteran and his partner describing symptoms of snoring, gagging, and breathing interruptions during service and thereafter, and the clear diagnosis of severe OSA, the Board is persuaded that the Veteran had symptoms of sleep apnea during service. Accordingly, all Shedden elements have been satisfied. See Shedden, supra. Given that the Board has determined that the Veteran likely suffered from sleep apnea symptoms during service and that he has been diagnosed with sleep apnea post service based on similar symptoms, the Board finds that the Veteran's OSA at least as likely as not began during service. In this regard, the Veteran submitted competent and credible lay statements regarding the onset of symptoms associated with sleep apnea. As such, there is persuasive lay evidence demonstrating that the Veteran's symptoms began in service. It follows that these is at least arguable evidence that there is nexus evidence that the Veteran's severe OSA began during service. Accordingly, the Board finds that elements under Shedden, to include nexus evidence, are met. Thus, in the present case, the evidence shows that the Veteran currently has OSA, that his symptoms of such likely began during service, and that these same symptoms were diagnosed as obstructive sleep apnea following discharge from service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for OSA, as directly incurred in service, have been met. 38 U.S.C. § 5107(b) (2018); 38 C.F.R. § 3.102 (2020). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hal Smith, 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.