Citation Nr: 21041315 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-40 538 DATE: July 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, her obstructive sleep apnea began during active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to September 2000. The appeal was most recently before the Board in July 2020 when it was remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The claim of service connection for a left wrist carpal tunnel syndrome and for urinary incontinence were remanded by the Board in July 2020. As a January 2021 rating decision granted entitlement to service connection for left wrist carpal tunnel syndrome and a March 2021 rating decision granted service connection for urinary incontinence; the issues are no longer before the Board. Copies of the Veteran's full service treatment records are unavailable; the Veteran was notified of that finding in October 2005. The Board recognized its heightened duty to explain its findings and conclusions and to consider benefit of the doubt and corroborative testimony in cases where records are unavailable. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Entitlement to service connection for obstructive sleep apnea The Veteran seeks service connection for obstructive sleep apnea. The Board finds the claim should be granted. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA treatment records reflect that the Veteran was diagnosed with obstructive sleep apnea after a January 2005 sleep study. Thus, the question becomes whether the current disability is related to service. While the October 2020 VA examiner provided a negative nexus to service, the Board finds that this opinion is inadequate. The examiner's rationale was that the Veteran's June 2000 report of medical examination on her separation from service showed no evidence to support complaints, evaluation and treatment of sleep disorder or factors related to sleep disorder during service. In the July 2020 remand, the Board directed the examiner that the lack of documentation or a formal diagnosis in the Veteran's service treatment records could not be the only basis to reject a possible nexus to service. The examiner offered no other rationale other than the lack of evidence on her report of medical examination and in her available service treatment records. The evidence in favor of the claim includes a statement received in April 2018, from C.J.P., a retired Army nurse, who reported that she served with the Veteran and played on the same base softball team with her. She reported that the Veteran snored very loudly and that when they traveled for away games, the Veteran had to carry a machine and she witnessed her put a mask on to help her breathe at night. She also reported that the Veteran was diagnosed with sleep apnea during service. For her part, the Veteran has asserted that her sleep apnea first started in service with symptoms continuing to the present. The Board finds this lay evidence competent and credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995). (Continued on the next page) Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current obstructive sleep apnea arose in service. The record includes credible evidence from C.J.P. who has medical training and served with the Veteran of symptoms and a diagnosis during her active duty service. Accordingly, in light of the Board's heightened duty in cases where records are unavailable, and after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; O'Hare, 1 Vet. App. at 365. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.