Citation Nr: 21040112 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-04 705 DATE: July 2, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's obstructive sleep apnea had its onset in service and has continued since service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1981 to February 1992. The case is on appeal from an October 2016 rating decision. The Veteran requested a hearing before a Veterans Law Judge at the Board of Veterans' Appeals (Board) in his January 2018 substantive appeal. The Veteran was scheduled to testify via video conference at the Atlanta Regional Office for his Board hearing in April 2019, but he did not report for the hearing. To date, the Veteran has not requested a new Board hearing. Accordingly, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) In July 2020, the Board issued a decision that denied entitlement to service connection for obstructive sleep apnea. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC). In a February 2021 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the July 2020 decision for compliance with the instructions in the JMR. Service connection for obstructive sleep apnea. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). In addition, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for sleep apnea. He contends that his sleep apnea had its onset during his deployment to Sinop, Turkey during the Persian Gulf War. Initially, the Board notes that the parties to the February 2021 JMR agreed that vacatur and remand were necessary as the Board failed to provide an adequate statement of reasons and bases for its determination that service connection was not warranted for sleep apnea. The parties agreed that the Board failed to address the applicability of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 given the evidence of record demonstrating that the Veteran served on active duty in the Southwest Asia theater of operations during the Persian Gulf War. The JMR notes that the Veteran was awarded a Southwest Asia Service Medal. The Board finds that the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable in this case. The evidence demonstrates that the Veteran was stationed at the U.S. Army Field Station in Sinop, Turkey. Thus, he was not stationed at one of the enumerated areas comprising the Southwest Asia theater of operations. 38 C.F.R. § 3.317(e). As such, he does not have qualifying service for the purposes of 38 U.S.C. § 3.317. Concerning whether service connection is warranted for sleep apnea, the current disability requirement is established. VA medical records indicate that the Veteran was diagnosed with OSA in a June 2016 sleep study. As such, the remaining question is whether the Veteran's diagnosed obstructive sleep apnea was incurred during service. In this regard, the evidence of record reflects that the Veteran experienced relevant symptoms of sleep apnea during service. The Veteran provided a statement with his November 2016 notice of disagreement (NOD) reflecting he was made aware of his snoring during service. He stated that during his deployment during the Persian Gulf War, several of his roommates requested to be moved from his room due to his loud snoring. The Veteran stated further that over the years he continued to experience loud snoring, and gasping for air, choking, and waking up in the middle of the night. The Veteran also noted that his VA physician stated that he had sleep apnea for a very long time. The Board notes, generally, it is within the common knowledge and ordinary experience of lay persons to know that some symptoms, such as snoring, temporary cessation of breathing during sleep are associated with sleep apnea. Hence, the Veteran's lay statements are evidence supporting the claim. In addition, the Veteran's VA treatment records also document sleep symptoms prior to diagnosis. See e.g., November 10, 2003, September 27, 2016, May 18, 2015 VA treatment records. The Board notes that the evidence of record also includes the opinion of a VA examiner who provided an examination in August 2016. The examiner determined it is less likely than not that the Veteran's obstructive sleep apnea was incurred in or caused by the claimed in-service event. She noted that she based this determination on the examination and all available documentation and stated that sleep apnea is not corroborated as having occurred during service or caused by the Veteran's service in Southwest Asia. However, the Board finds this VA examiner's opinion is of limited probative value. The examiner failed to consider the lay statements of symptoms during service and instead relied on an absence of documented evidence of symptoms during service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the symptoms during service, or why an absence of treatment or documented symptoms was otherwise medically significant. She also appears to have based her opinion on the Veteran's service in the Southwest Asia theater of operations. However, as noted above, the Veteran served in Turkey. Thus, her opinion is based on an inaccurate factual premise. (Continued on next page) Upon review of the record, the Board determines the evidence overall reaches at least a level of equipoise as to the nexus element. The Veteran is competent to report the inception of symptoms in service and continuity since then. When resolving any reasonable doubt in the Veteran's favor, the Board finds that his obstructive sleep apnea had its onset during service. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection for sleep apnea is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.