Citation Nr: 22017299 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-05 371 DATE: March 24, 2022 ORDER Entitlement to service connection for sleep apnea disorder is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his sleep apnea disorder had its onset in service. CONCLUSION OF LAW The criteria to establish service connection for a bilateral foot disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1994 to November 2000. The Veteran had a virtual hearing before the undersigned Veteran's Law Judge in October 2021. A transcript of the hearing is of record. The Veteran has other claims on appeal that are still being developed, and not yet ready for adjudication. Entitlement to service connection for sleep apnea The Veteran asserts that he is entitled to service connection for sleep apnea because the disorder originated during active-duty service. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The evidence reflects that the Veteran was diagnosed with sleep apnea in approximately 2017. Accordingly, the first element necessary to establish service connection has been demonstrated. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records are devoid of a diagnosis of sleep apnea, however, the service treatment records reflect symptoms such as fatigue even though it was no official diagnosis until 2017. Additionally, the Veteran and his service mate have made credible statements regarding symptoms since service. Based on this evidence, the Board concludes that the second element has been demonstrated. Regarding the third element, the April 2019 private medical provider opined that the Veteran's sleep apnea disorder was at least as likely as not related to active-duty service as he experienced symptoms since service. This opinion is highly probative, as it was provided by a competent medical professional and based upon his relationship as his treating professional. Thus, a positive nexus has been shown although it is not required when the symptoms have persisted since service. Additionally, a lack of a medical nexus is not fatal to the Veteran's claim because service connection may be established for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, to include evidence showing continuity of symptoms during and after service. 38 C.F.R. § 3.303 (d). Under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for sleep apnea disorder is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel