Citation Nr: 21041207 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-21 509 DATE: July 8, 2021 ORDER Service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of obstructive sleep apnea. 2. Symptoms of sleep apnea began during service and have been present since active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from January 2001 to May 2002, June 2004 to June 2005, and December 2009 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision from the Regional Office (RO), which denied service connection for sleep apnea. In May 2019, the Veteran testified at a Board videoconference hearing from the RO in Nashville, Tennessee, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. This case was previously before the Board in October 2019, where the issue on appeal was remanded to obtain a medical opinion from a VA examiner. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for the sleep apnea, which is a total grant of benefits as to the issue on appeal, the Board need not address Stegall compliance at this time. Service Connection for Sleep Apnea is Granted. The Veteran contends that symptoms of sleep apnea have been present since his first deployment to Iraq from 2004 to 2005. The Veteran testified that he slept in the barracks designated for service members that snored, and that a deployment mate complained about his snoring. The Veteran asserts that he never felt well rested after sleeping and that his sleeping problems continued over the years, including during a second deployment to Iraq from 2009 to 2010. The Veteran asserts that he continued to have chronic sleep problems after service and was first made aware of his breathing problems at night in 2011, when his girlfriend woke him up due to worries that he was not breathing during sleep. He eventually scheduled an appointment for a sleep study in 2012, which confirmed sleep apnea. See May 2019 Board hearing transcript. Under the relevant laws and regulations, 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(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. Initially, the Board finds evidence of a current diagnosis of obstructive sleep apnea, as reflected in the December 2012 sleep study. See December 2012 VA treatment record. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of sleep apnea in service that continued after service separation, and were later diagnosed as obstructive sleep apnea, i.e., whether sleep apnea was directly "incurred in" service. The Veteran has provided credible lay reports of symptoms of a sleep disorder, including loud snoring, daytime fatigue, and difficulties breathing during sleep that began during the deployments to Iraq and continued after service separation. July 2015 Notice of Disagreement, May 2019 Board Hearing Transcript. A July 2010 service treatment note shows that the Veteran reported problems with excessive fatigue while initially deployed to Iraq that he thought were related to his hypertension medication, so he discontinued using the medication on his own. However, a September 2010 service personnel record indicates that on a medical readiness requirement form the Veteran reported continued problems with sleeping despite the prior discontinuance of his medication. July 2010, September 2010 service treatment records. Post-service records also show reported symptoms of a sleep disorder after service separation as well. VA treatment records show that following the first deployment in Iraq from 2004 to 2005, the Veteran reported a history of problems with feeling tired regardless of the amount of sleep, nodding off at work, and that he has been told he snores in the past. The Veteran testified that following the second deployment to Iraq from 2009 to 2010 his girlfriend complained of his loud snoring and disrupted breathing in 2011, within one year of service separation, which prompted him to eventually seek evaluation. The December 2012 sleep study also shows continued complaints of excessive daytime sleepiness and tiredness, witnessed apnea, gasping awakening, and daily naps. The sleep study confirmed obstructive sleep apnea with severe excessive daytime sleepiness. Additionally, the Veteran continued to have inadequate sleep over the years despite current use of CPAP therapy. See February 2008, December 2011, January 2013, August 2017 VA treatment records. While the VA examiner in October 2019 opined that the current sleep apnea is not related to active service because complaints of snoring, tiredness or sleepiness, and witnessed disturbed breathing are not objective medical evidence of a diagnosis of sleep apnea during service. The rationale seems to have precluded contemplation of such in-service and post-service symptoms by concluding that sleep apnea is caused by the blockage of the airway via collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. The VA examiner did not adequately consider all the sleep disorder symptoms reported, particularly credible lay statements of gasping for air and difficulty breathing during sleep. The VA examiner in October 2019 did not sufficiently address why the sleep disordered symptoms noted during service are not related to the current sleep apnea, given the fact that the VA examination report lists persistent hypersomnolence as a sign and/or symptom of the current sleep apnea and the pre- and post-service medical evidence reflects reports of excessive daytime fatigue and sleepiness during service and since service separation. The VA examiner in October 2019 also opined that the Veteran's sleep apnea is likely related to the other risk factors such as the Veteran's current obesity, given the Veteran's weight of 260 and body mass index (BMI) of 34.5 when he was diagnosed in 2012; however, this rationale does not reconcile the fact that the Veteran had the same symptoms of sleep apnea during service when he was 230 pounds and was not clinically obese. As such, the Board finds the VA medical opinion less than probative, as it did not adequately consider all of the relevant and credible symptoms reported. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis but cannot reject the opinion solely because the history was from the veteran). While sleep apnea is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found the evidence at least in equipoise on the question of whether the Veteran had sleep apnea symptoms that began during service and continued since service separation, which symptoms were later diagnosed as obstructive sleep apnea, thus tending to show direct service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). The Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of a sleeping disability (later diagnosed as obstructive sleep apnea) began in service, so was "incurred in" service. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.