Citation Nr: 21041148 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 20-02 828 DATE: July 8, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran's sleep apnea is etiologically related to active duty service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from August 1998 to August 2003 and in the Army from October 2008 to October 2011, from December 2011 to September 2012, and from January 2013 to January 2014, including service in Iraq, with additional reserve service. The Veteran testified before the undersigned Veterans Law Judge during a June 2021 hearing. This matter is on appeal from a December 2016 rating decision. 1. Sleep Apnea The Veteran contends that he has sleep apnea that was caused by exposure to smoke from burn pits during his service in Iraq. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's VA treatment records note a diagnosis of obstructive sleep apnea after a July 2016 sleep study. The Veteran has submitted an April 2017 examination by a private physician, who opined that it is "much more likely than not" that the Veteran's sleep apnea was present during his active duty service. However, this opinion was based on the mistaken belief that the Veteran was on active duty service at the time of the examination. A medical opinion based on an inaccurate factual premise has limited, if any, probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran was afforded a VA medical opinion in May 2017. The clinician opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by trouble sleeping during service because "obstructive sleep apnea occurs when the throat and tongue muscles are more relaxed which causes the soft tissue to block the airway" and the Veteran and his spouse reported restless sleep. This opinion did not address the Veteran's contentions with regard to smoke exposure. The Veteran has submitted an August 2017 opinion by a different private physician, who opined that "there is a very great (greater than 50%) probability" that his sleep apnea is service connected. The physician's rationale was that the Veteran did not have sleep apnea at the time of enlistment, is not overweight, does not have any laxity in the soft tissues of his upper airway, and had a "peculiar exposure to latrine 'burn pits' when in the field in Iraq." The Veteran was afforded a VA examination in October 2017. The clinician opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by active duty service because sleep apnea "is multifactorial and can be caused by family history, excess weight, use of substances that relax the throat, nasal congestion, and neck circumference" and that although exposure to smoke may cause sleep apnea, the risk drops after exposure ends. The medical evidence of record shows a diagnosis of obstructive sleep apnea. The record contains four medical opinions. The April 2017 private opinion is inadequate for rating purposes because it is based on an inaccurate factual premise. The August 2017 private opinion contains a thorough and compelling rationale and directly addresses and counters the rationale of the May 2017 medical opinion by pointing out that the Veteran does not have laxity of the soft tissues of his upper airway. The October 2017 VA opinion concedes that exposure to smoke can cause sleep apnea but identifies other possible causes without identifying any of them as applicable to the Veteran. The Board finds that the August 2017 private opinion is of the greatest probative value of the four medical opinions of record because it contains a thorough rationale that directly addresses the Veteran's contentions and his specific circumstances. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's sleep apnea was due, at least in part, to in-service smoke exposure. Accordingly, the Board finds that granting service connection for sleep apnea is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.