Citation Nr: 18123962
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-32 812
DATE:	August 3, 2018
Entitlement to service connection for sleep apnea is granted.
The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset during his active military service. 
With reasonable doubt resolved in favor of the Veteran, sleep apnea was incurred in service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
The Veteran served on active duty from January 1983 to April 2004.
This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied service connection for sleep apnea.
In March 2013, the Veteran filed his notice of disagreement, and in August 2015 was issued a statement of the case and perfected his appeal to the Board.
The issue of entitlement to an initial compensable rating for service connected sinusitis has been raised by the record by way of a February 2018 Amended Appellate Brief, but has not been adjudicated by the Agency of Original Jurisdiction.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9 (b) (2017).
Entitlement to service connection for sleep apnea
The Veteran stated that he was recently diagnosed with sleep apnea and believes there may have been indicators that he had sleep apnea during service.  He stated that during his career he always woke up several times each night, often with a low grade sore throat, and felt tired during the day but assumed it was normal.
Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
Service treatment records note multiple instances where the Veteran complained of a sore throat, nasal congestion and sinusitis symptoms.
October 2011 private treatment records note that the Veteran reported waking up several times a night, and feeling tired during the day.  He also reported being told that he snores frequently and loud enough to disturb others which has been going on for more than 2 years.  The treating physician noted a diagnosis for obstructive sleep apnea-hypopnea syndrome.
The Veteran submitted a buddy statement wherein a fellow servicemember reported that during Operation Desert Storm, he had to sleep with earplugs when he shared a room on base with the Veteran due to the Veteran’s snoring.  He stated that the Veteran snored every night and there were times his snoring would seem to catch/stop and then abruptly start again.
The Veteran also submitted a statement from his wife where she stated the Veteran has snored since they were married in August 1986 and 5 years into the marriage it had worsened.  She stated that the Veteran sounded like he was holding his breath while he slept, was restless at night, and constantly woke himself up.  The Veteran did not believe his family when he was informed of his snoring. The Veteran’s wife reported that she eventually had to sleep in a separate room.
In November 2012, a private physician opined that after a review of the Veteran’s medical records, the Veteran’s sleep apnea was present but undiagnosed during his time in the Air Force, and that it was likely responsible for multiple sick call visits which included sore throat, headache, sinusitis, and pharyngitis.  The physician stated the Veteran began displaying symptoms of sleep apnea in the early 1990s and that it was more likely than not that the Veteran’s sleep apnea manifested itself during his time in service.
In February 2018, an different private physician, characterized as an independent medical expert, opined that the Veteran’s sleep apnea was more likely than not developed during service after a review of the Veteran’s wife’s testimony, that of the fellow serviceman, and his private physician.  She also referred to medical documentation regarding causes of obstructive sleep apnea.  The medical expert noted that since only a sleep study can diagnose obstructive sleep apnea, physical examinations during service were normal, which explains why the Veteran was not diagnosed until he had a sleep study in 2011.
The evidence is thus at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service.  The Veteran has provided competent lay testimony as to his in-service symptomatology, and the November 2012 private physician and February 2018 medical expert both opined that the Veteran’s sleep apnea was more likely than not incurred in service.  The medical opinions provided sound rationale and data to support their opinions, and are based on an accurate characterization of the evidence of record.  Therefore, they are afforded significant probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).  There is no contrary medical opinion in the evidence of record.
As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Maddox, Associate Counsel 

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