Citation Nr: 22040170 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-12 928 DATE: July 13, 2022 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's diagnosed obstructive sleep apnea is at least as likely as not related to her active duty service. CONCLUSION OF LAW The criteria to grant entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from January 1989 to January 2015. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision. In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims file. 1. Entitlement to service connection for sleep apnea Service connection may 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(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that she has sleep apnea that is related to her active duty service. The record reflects that the Veteran has a current diagnosis for obstructive sleep apnea. See February 2018 VA treatment record. The Veteran's service treatment records (STRs) show that a January 1988 service examination completed for the Judge Advocate General Corps (JAG) did not document sleep apnea. The notes section stated that the Veteran had allergies in the form of hay fever. There continued to be no report of sleep apnea in a September 1993 service examination, and an October 1998 service examination was silent for sleep apnea. In the October 1998 Report of Medical History, the Veteran denied having frequent or severe headaches as well as frequent trouble sleeping. Although the Veteran reported shortness of breath, the physician's summary related the report to the Veteran's asthma and allergic rhinitis. In December 2002, the Veteran complained of pain in her chest and throat with discharge/congestion. The STR stated that the Veteran had asthma that was intermittent with pollen triggers as well as an upper respiratory infection. The record indicated that some sinus headaches were also present. The assessment was asthma with upper respiratory infection triggered by hay fever, sinusitis, and tension headache; and the treatment plan included Midrin medication. In July 2003, the Veteran was seen for a medication refill of Midrin related to the assessment of tension-type headache. The record noted that the medication was last prescribed in December 2002. In November 2003, a Report of Medical History documented the Veteran's reports of asthma and a frequent or severe headache. However, the Veteran denied having a history of frequent trouble sleeping. The explanation of "yes" answers section stated that the Veteran had been treated for migraines during the last 10 years. A January 2004 service examination did not document sleep apnea. In November 2006, an STR indicated that there was no diagnosis history of sleep apnea. In May 2011, an STR reported that the Veteran had difficulty falling asleep and indicated that she got up between periods of sleep. The Veteran also experienced headaches as a result of this issue. The assessment included insomnia. The record noted that sleep hygiene was discussed with the Veteran, and a plan was made to try amitriptyline (Elavil EQ). In July 2011, the Veteran reported having a headache once a week that was worse by the end of the day or at night. The assessment was allergic rhinitis, asthma, and sinusitis. The provider noted next to sinusitis that the Veteran's headaches were not likely migraines due to the pattern of headaches. On November 11, 2002, the Veteran sought treatment from the emergency department at Ireland Army Community Hospital for a headache that had been present since that morning. The related record noted that she had had a past medical history of chronic headaches in the form of occasional migraines, and the current headache felt like past migraines. The discharge diagnosis was migraine headache. On May 16, 2012, an STR from the emergency department at Ireland Army Community Hospital indicated that the discharge diagnosis was acute headache. On May 17, 2012, an STR reported that the Veteran was seen for a follow up from an emergency room visit yesterday for migraine headaches; and the Veteran experienced mild headaches 1 to 2 time a month. The record indicated that she slept ok/normally with the exception of the previous Sunday night. The assessment was headache that was probably a migraine. In January 2013, an STR noted an assessment of asthma. A September 2013 STR later indicated that the Veteran had a medical history of asthma as well as migraines. On December 2, 2013, an STR stated that the Veteran reported for an over 40 periodic health assessment (PHA). The Veteran reported having sleep difficulty that including problems falling asleep and staying asleep with approximately 4 hours of sleep a night. The record indicated that the Veteran previously had with medications she tried. The assessment included insomnia, and the record indicated that the Veteran was prescribed melatonin. On May 8, 2014, an STR from Ireland Army Community Hospital indicated that the Veteran was seen by the emergency department for a headache. The record noted her past medical history of migraines and asthma, and the discharge diagnosis was acute headache. A May 12, 2014 STR later noted that the Veteran had a fair/general overall feeling/health and was feeling tired (fatigue). She was seen for a follow-up from an emergency room visit related to a complaint of having a severe headache for 5 days. The assessment included migraine headache. On May 14, 2015, an STR noted the Veteran's report that she had not experienced a headache since she started taking Topamax. The assessment included migraine headache that was controlled. In August 2014, an STR noted that the Veteran had a medical history of sleeping issues. An August 2014 retirement examination also noted asthma, migraine headaches, and insomnia without documenting sleep apnea. In the associated August 2014 Report of Medical History, the Veteran reported frequent trouble sleeping. Prior to the Veteran's January 2015 separation, the Veteran was provided with a December 2014 VA examination related to psychiatric disorders. The only noted diagnosis was insomnia disorder. Under medical diagnoses relevant to the understanding or management of the insomnia disorder, the examiner noted that the Veteran reported migraine headaches, allergies, asthma, arthritis, and hypoglycemia. A review of the medical records documented treatment for those conditions as well as follow-up care for a post-hysterectomy in May 2011. The Veteran indicated that she first noticed her sleep problems in 2010 or 2011. She fell asleep between 11:00 pm and 12:00 am, and she awoke around 2:00 am. She tried to implement good sleep hygiene and was taking melatonin as well as Topamax for migraines. The post-service treatment records include a December 11, 2017 VA primary care visit note stating that the Veteran presented to establish care. The record indicated that the Veteran's active outpatient medications included the use of melatonin to promote sleep. The diagnoses also included asthma, controlled; migraines, controlled; and suspected obstructive sleep apnea. A plan was made to refer the Veteran to the sleep clinic. A December 22, 2017 VA sleep medicine consultation later stated that the Veteran presented to the sleep clinic with concerns of not receiving adequate rest. The Veteran reported having difficulty getting sleep and staying asleep and described taking frequent naps. The Veteran reported that her condition had been present for at least 7 years. The record indicated that in response to a questionnaire, the Veteran reported having sleep disordered breathing symptoms that included loud snoring; witnessed apneas; waking, choking; waking up to her own snoring; sweating a lot during sleep; and early morning headaches. The Veteran additionally denied feeling comfortable when sleep supine. The record also noted that the Veteran's past medical history included obstructive sleep apnea of adult. The assessment was sleep disorder unspecified; insomnia, unspecified; inadequate sleep hygiene; and obesity. The provider stated that a plan was made to obtain a home WatchPat sleep study for further evaluation. The provider added that possible causes for sleep disturbance can be chronic pain, acid reflux, mood disorder (depression/anxiety), posttraumatic stress disorder (PTSD), inadequate sleep hygiene (habits), and others. A subsequent January 10, 2018 VA sleep medicine consultation noted the results of the WatchPat Home Sleep Study Interpretation. The summary documented moderate obstructive sleep apnea with associated mild nocturnal hypoxemia, and the recommendations included a prescription for a continuous positive airway pressure (CPAP) machine. When the Veteran was provided with an additional VA examination related to insomnia disorder in April 2018, the examiner identified obstructive sleep apnea as the medical diagnosis relevant to the understanding or management of the insomnia disorder. The Board notes that the Veteran has consistently reported that she began to experience symptoms of her diagnosed obstructive sleep apnea while serving on active duty, and the symptoms have continued to be present since that time. See, e.g., December 2018 Notice of Disagreement; April 2019 VA Form 9; November 2021 Board Hearing Transcript. During the November 2021 Board hearing, the Veteran described her attempts to seek treatment for symptoms of obstructive sleep apnea during service; indicating that she tried to communicate to providers how the symptoms appeared to be more than those associated with her asthma or migraine headaches. The Veteran informed them that she was not obtaining rest at night and experienced headaches in the morning. The in-service providers initially attempted to treat the Veteran's asthma before diagnosing insomnia after her symptoms did not improve. The Veteran summarized that her separation occurred before any further testing could be explored. However, the Veteran's sleep problems, feelings of being tired during the days, and her headaches continued. The Veteran reported that she continued to receive treatment at Fort Hood following her discharge before she ultimately sought treatment at VA. At that point, VA sent the Veteran to sleep clinic where the Veteran was informed for the first time that she likely had sleep apnea. The Board notes that the Veteran is competent to report her history of observable symptoms such as difficulty sleeping, morning headaches, and daytime fatigue. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also finds the Veteran's reported history to be credible as her reports are largely consistent with the information in the STRs and post-service evidence. In addition, the Veteran's son submitted a November 2021 statement that supported her history of continued symptoms since service. He reported currently being a young adult and noted that he lived with the Veteran for his entire childhood until he went away to college. He stated that he had heard his mother snoring loudly while sleeping from the time he was a young child. He also recalled that she slept with an inhaler by her bedside. He additionally perceived the Veteran to be tired in the mornings and appearing to push through this fatigue to go to work and take care of her children. He reported that the Veteran still fell asleep during the day while sitting in a chair, mainly while watching television; and she used her CPAP at night. The questionnaire from the December 2017 VA treatment record also indicates that symptoms such as snoring and early morning headaches were indicative of sleep disordered breathing. The Board additionally finds it significant that there is no indication that the Veteran received diagnostic testing such as a sleep study in relation to her symptoms until after service when the results revealed obstructive sleep apnea. Based on this competent and credible evidence supporting that the Veteran has experienced continued symptoms of obstructive sleep apnea since they began during active duty service, the Board finds that the most probative evidence establishes a nexus between active duty service and the Veteran's current obstructive sleep apnea. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection is granted for obstructive sleep apnea. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.