Citation Nr: 22014192 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-27 460A DATE: March 11, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's currently diagnosed obstructive sleep apnea had in-service onset. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 2002 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision. In October 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) Entitlement to service connection for obstructive sleep apnea is granted. The Veteran asserts that his obstructive sleep apnea is related to service. The Veteran contends that he began having sleep apnea symptoms during service including constantly feeling tired, a lack of energy, and low sleep quality, no matter how much or how often he slept. During his hearing, the Veteran testified that he noticed after his first deployment he started sleeping a lot more, but he just attributed it at the time to the Marine Corps lifestyle. He testified that he started noticing symptoms of fatigue, sleepiness, and trouble sleeping while he was on active duty, and then shortly after he got out of service, he visited his doctor due to feeling tired and lack of sleep quality and was referred for a sleep study. The Veteran asserts that he initially underwent a sleep study in June 2008 that was inconclusive due to a lack of sleep data but reflected poor sleep efficiency. The Veteran then underwent a sleep study in December 2008 that confirmed a diagnosis of obstructive sleep apnea (OSA). The Veteran contends that, although he was not diagnosed with sleep apnea formally during active duty, the evidence indicates that it started during that time period. See December 2008 private treatment records; see also October 2021 hearing transcript. In connection with his service-connection claim, the Veteran was afforded a VA Sleep Apnea examination in September 2013. The VA examiner noted the Veteran's December 2008 diagnosis of OSA. As a result of the examination, the examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the VA examiner explained that the Veteran has civilian documentation showing a sleep study was ordered within one year after leaving military service after evaluating ongoing tiredness/irritability. The examiner further explained that the sleep study was not done until December 2008, but the sleep apnea was most likely already present in May 2008. The VA examiner also noted that Veteran had a post-deployment assessment from deployment ending in 2007 stating that he was having breathing problems, problems sleeping with non-restful sleep, and sleep apnea symptoms. See September 2013 VA examination report. The Board notes that the Veteran is competent to report the onset and progression of observable symptoms such as sleep problems. In October 2013, the RO denied the claim, noting that the active-duty service treatment records are negative for any complaints of or treatment for sleep apnea or sleep issues. However, on his Report of Medical History associated with his separation examination, the Veteran reported breathing problems, frequent trouble sleeping, trouble falling asleep, and that he sleeps 6 to 8 hours but feels that he wakes up tired. See May 2007 Report of Medical History. In June 2016, the Veteran submitted a private medical opinion from P.W.C., RN, MSN, FNP, that in his professional opinion, it is more likely than not that the Veteran was suffering from OSA prior to his official diagnosis in December of 2008. The provider explained that within one year of his separation from the military (June 2007), the Veteran was experiencing symptoms of OSA including but not limited to fatigue, decreased energy, waking up tired, and falling asleep during the day, and that these conditions have grown progressively worse over time. See May 2016 P.W.C. statement. Also in June 2016, the Veteran submitted a statement from a fellow servicemember and roommate, L.R., noting his personal observations of the Veteran's snoring. L.R. stated that he noted the Veteran would often awake with a jump, particularly loud snore, or gasp; that the Veteran was probably the loudest snorer her had ever encountered; and that the Veteran would suddenly stop snoring, mumble something, and return to sleep. Although this servicemember is not a medical expert, he is competent to testify to symptoms he personally observed. See June 2016 L.R. statement. In sum, the Veteran has competently and credibly reported that his symptoms, which have now been attributed to OSA, had its onset during his active service and has continued since that time. Although the Veteran was not formally diagnosed with OSA until 2008, based on the VA and private medical opinions, the sleep-related and breathing problems reported at the time of his separation examination, as well as the Veteran's subjective statements of in-service symptoms supported by lay statements, the Board finds that the evidence for and against the claim is at least in equipoise that the disability had in-service onset. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for OSA is warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.