Citation Nr: 22017658 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-55 594 DATE: March 25, 2022 ORDER Entitlement to service connection for a sleep apnea disability is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran's sleep apnea had onset during active service. CONCLUSION OF LAW The criteria for the award of service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to June 1998. The Veteran testified at a videoconference hearing before a member of the Board in October 2021. A transcript of the hearing is of record. The Veterans Law Judge (VLJ) that conducted the hearing is no longer employed by the Board, and the law requires that the VLJ who conducts a hearing must participate in any decision made on the appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By way of a February 2022 letter, the Veteran was notified that the VLJ that conducted his hearing is no longer employed by the Board and was offered the opportunity to have a new hearing. In March 2022, he declined a new hearing. Entitlement to service connection for a sleep apnea disability. The Veteran asserts that his sleep apnea disability began during his active-duty service manifesting in chronic loud snoring, frequent nighttime waking, and daytime fatigue. 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). The Veteran was diagnosed with obstructive sleep apnea in January 2013. See NMC San Diego Outpatient Health Record. His service treatment records are silent for complaints of or treatment for sleep apnea. However, in support of his claim, the Veteran has submitted four buddy statements. Three retired servicemembers, F.S., R.M., and E.O., stated that they had been stationed with the Veteran over the course of his military career. Each individual noted that they had shared berthing quarters with the Veteran and witnessed his chronic loud snoring, pauses in breathing and gasping for air while sleeping, and chronic daytime tiredness. See June 2014 E.O. Statement (stating service with the Veteran from January 1978 to December 1979,) June 2014 R.M. Statement (noting service with the Veteran from September 1987 to June 1990,) and June 2014 F.S. Statement (noting service with the Veteran from January 1989 to June 1992.) Additionally, in June 2014 statement, the Veteran's wife, R.B., stated that she started living with the Veteran in 1980 and witnessed the Veteran's chronic loud snoring, gasping for breath, headaches upon waking, and daytime tiredness throughout his military career. There are two private medical opinions of record. In a June 2014 private opinion, Dr. C.S., a sleep medicine specialist and diplomate of the American Board of Sleep Medicine, stated that it was her expert opinion that the Veteran's sleep apnea developed during his active service. Upon review of the Veteran's service and post-service treatment records, as well as his sleep history, Dr. C.S. opined that the Veteran's sleep apnea took approximately 20 to 25 years to develop and worsen, which was observed by his shipmates and their descriptions of the Veteran's chronic snoring, trouble breathing during sleep, and daytime tiredness. Based upon her expert knowledge of sleep apnea and how apnea worsens over the course of an individual's lifetime, she opined that it was at least as likely as not that the Veteran developed obstructive sleep apnea during his active-duty service. In an April 2015 private medical opinion, Dr. B.R., a board-certified sleep medicine doctor, as well as a diplomate of the American Board of Psychiatry and Neurology, also opined that it was at least as likely as not that that the Veteran's sleep apnea began during service. She noted that, while weight gain and obesity can be a factor in the development of sleep apnea, the Veteran only had a slight increase in documented weight gain in the 15 years following service until such time he was diagnosed with sleep apnea. Additionally, the Dr. B.R. stated that the Veteran's weight had varied in service, and at one time, was as high as 170 pounds higher than his weight at the time of sleep apnea diagnosis in January 2013. Further, upon physical examination, Dr. B.R. indicated that the Veteran had a large tongue size and crowded oropharynx due to a low-lying soft palate and lateral narrowing, which would have been a contributing risk factor for sleep apnea not only post-service but during his active service, as well. The Board finds the June 2014 and April 2015 private medical opinions to be of high probative value because they are based on an accurate medical history and provide an explanation that contain clear conclusions and supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although there are two VA medical opinions of records against the claim, the Board affords the September 2014 and June 2015 VA medical opinions little probative value. Each of the VA opinions was based upon a review of the record only. VA examiners provided a negative nexus opinion and based their conclusion on a documented 12-pound weight gain from the time of the Veteran's retirement from active duty until his January 2013 sleep apnea diagnosis. Neither VA examiner addressed the private medical opinions of record that suggested in-service onset, nor did they comment on the multiple buddy statements of record documenting the Veteran's symptoms in service. For all the above reasons, the Board finds that the evidence persuasively weighs in favor of a finding that the Veteran's sleep apnea was incurred in service. As such, entitlement to service connection for obstructive sleep apnea is warranted, and the benefit sought on appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.