Citation Nr: 21040072
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 16-30 386
DATE: July 2, 2021

ORDER

Service connection for an obstructive sleep apnea is granted.

FINDING OF FACT

The evidence of record is in relative equipoise as to whether the Veteran's current obstructive sleep apnea had been incurred during service.

CONCLUSION OF LAW

By resolving any residual doubt in the Veteran's favor, the criteria for service connection for an obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran honorably served on active duty from October 1996 to December 2002. In a March 2015 rating decision, the Regional Office (RO) denied his claim for service connection for an obstructive sleep apnea (OSA). The Veteran appealed. In June 2019, the Veteran testified at a Board's hearing, a transcript of which is of record. In September 2019, the Board remanded the claim to obtain an etiological opinion. In August 2020, upon obtaining the requested opinion which turned out negative, the RO issued a supplemental statement of the case affirming its prior decision and then returned the appeal to the Board. In April 2021, the Veteran submitted a private medical opinion that it is at least as likely as not that he had incurred his current OSA during his service.

Service connection is granted for a disability incurred in service. 38 U.S.C. § 1110. Of note, the fact that the claimed disability has been diagnosed after service does not preclude a grant of service connection, so long as the evidence of record shows that it is at least as likely as not that the disability had been incurred in or otherwise is etiologically related to service. See 38 C.F.R. § 3.303(d). In cases, where the positive and negative evidence strike an approximately equal balance, any residual doubt is resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Upon considering multiple competing medical opinions of record as to whether or not the Veteran's OSA initially diagnosed in 2012 had onset in service, the Board has found that the medical evidence of record is in relative equipoise. In sum, on the one hand, the VA examiners, to include a board-certified pulmonologist, opine that the Veteran's sleep apnea is etiologically related to his post-service obesity which is a well-known risk factor for developing an OSA. 

On the other hand, the two private examiners, to include an otolaryngologist board-certified in sleep medicine, opine that the Veteran's OSA had onset in service, particularly noting that the Veteran had "clearly exhibited the cardinal signs and symptoms of Obstructive Sleep Apnea during his service"; that about 50 percent of the patients with OSA are not obese and at least 80 percent develop OSA due to factors other than obesity which does affect the severity of OSA but less so the underlying etiology; and that the OSA diagnoses are commonly delayed on average by 7 years during which the symptoms are often present for many years without patients knowing they have the disorder. 

Given the examiners' similar credentials, equally persuasive authorities relied upon, thoroughness and soundness of rationale offered in support of the rendered opinions, the Board has found that the positive and negative evidence of record is in relative equipoise. Having resolved any residual doubt in the Veteran's favor, the Board has further found that the legal criteria for the benefits sought here have been met. Accordingly, the appeal is granted.

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Alex Bardin, 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.