Citation Nr: 21042405 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-13 508 DATE: July 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's obstructive sleep apnea began during active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have been 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 had active service in the United States Navy from August 1990 to January 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); this case is in VA's legacy appeals system. The Veteran testified at a March 2021 Board hearing before the undersigned. Technical problems with the recording of this hearing prevented the production of a transcript of the hearing. In May 2021, VA sent a letter to the Veteran explaining this and offering the Veteran a new hearing. The Veteran did not respond to this letter and the Board will therefore proceed with the decision without holding a new hearing. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that he has currently diagnosed obstructive sleep apnea which began during service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). June 2013 VA treatment records show the Veteran has a current diagnosis of obstructive sleep apnea. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes the fact that the Veteran's obstructive sleep apnea was not diagnosed until June 2013, six months after he separated from active service, as well as two negative VA opinions. In August 2016, a VA examiner opined that the Veteran's obstructive sleep apnea was not related to service because the type of complaints noted in service, such as poor sleep, are not enough to justify a diagnosis of sleep apnea. In November 2017, a second VA examiner opined that the Veteran's obstructive sleep apnea was not related to service because the Veteran's report of in-service symptoms since 1995 would mean he suffered without treatment until he sought treatment in 2013. The examiner did not explain why this was not credible. The evidence in favor of the claim includes a few noted in-service complaints of sleep trouble, three lay statements, and a positive opinion from a private provider. While most of the Veteran's service treatment records were deemed unavailable, there are records from December 2012 noting the Veteran's poor sleep, although in the context of psychiatric symptoms. In June 2016, the Veteran's treating doctor opined that his sleep apnea more likely than not existed during service because it was diagnosed withing six months of separation. The only variable risk factor for developing sleep apnea is weight, and the Veteran's weight had not changed enough to explain a sudden onset of sleep apnea within six months of separation. In June 2017, two co-servicemembers and the Veteran's wife submitted lay statements. Veteran D.B. reported bunking with the veteran in 1997 and 1998. He said the Veteran snored loudly and would have quiet periods followed by gasping and choking. He was worried about the Veteran, but the Veteran shrugged it off. Veteran F.O. bunked with the Veteran from 2008 to 2010 and described the same symptoms as veteran D.B. Finally, the Veteran's wife stated that she met the Veteran in 2010 and they moved in together a few months later from which point she described the same symptoms as veterans F.O. and D.B. It worried her and she was ultimately able to convince him to see a doctor. The Board notes that neither of the VA opinions addresses the argument made in the June 2016 opinion, and the November 2017 examiner did not explain why the Veteran's claims of in-service onset, supported by multiple lay statements, were not credible. Meanwhile, the June 2017 lay statements corroborated the Veteran's claims that he had significant levels of sleep apnea symptoms during service. The Board finds the June 2016 private opinion to be probative because it is consistent with the facts in the record, including lay statements that were not available when the opinion was originally provided. The VA examiners' opinions are less probative because they did not adequately address relevant evidence including the Veteran's claims of in-service onset of symptoms as the June 2016 private opinion. 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. Accordingly, 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. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.