SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served from May 1988 to July 1988 and September 1990 to November 2014, appeals the denial of service connection for obstructive sleep apnea. The primary issue was whether the veteran's current diagnosis of obstructive sleep apnea was incurred during service. The veteran underwent a sleep study post-service which diagnosed obstructive sleep apnea. While service treatment records did not contain a formal diagnosis, they did show recurrent nocturnal awakenings and a request for a sleep study prior to discharge. A private sleep medicine physician, Dr. E.H. O., who treated the veteran for three years and reviewed his service records, opined that the in-service complaints of frequent nocturnal awakenings were indicative of obstructive sleep apnea and that it was at least as likely as not incurred during service. The Board found the VA examiner's opinion inadequate because it relied on the absence of an in-service diagnosis and improperly dismissed the veteran's reported nocturnal awakenings as unrelated to sleep apnea without proper rationale. The Board afforded greater weight to the private physician's opinion, finding it highly probative and consistent with the evidence of in-service complaints. Consequently, the Board found service connection for obstructive sleep apnea warranted, noting that an in-service diagnosis is not required if other evidence establishes incurrence during service. The appeal was granted, and the veteran's request for a hearing was cancelled.

Rationale

Probative evidence of in-service incurrence of obstructive sleep apnea; Private physician opinion found highly probative; VA examiner opinion found inadequate

Full Decision Text

Citation Nr: 20062401
Decision Date: 09/22/20	Archive Date: 09/22/20

DOCKET NO. 18-01 665
DATE: September 22, 2020

ORDER

Entitlement to service connection for obstructive sleep apnea is granted.

FINDING OF FACT

The most probative evidence of record establishes that the Veteran’s obstructive sleep apnea began during active service. 

CONCLUSION OF LAW

The criteria for 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 had active service from May 1988 to July 1988, and from September 1990 to November 2014.  

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Board is aware that the Veteran has requested a hearing.  Considering delays in hearings scheduling caused by COVID-19, the Board ordered a review of some of the oldest docket legacy cases in our hearing queue that may be fully granted with evidence of record.  Based on the grant of the appeal, the Veteran’s request for a hearing is no longer necessary and will be cancelled. 

Service Connection

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.

To establish service connection on a direct incurrence basis, the 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   

1.  Entitlement to service connection for obstructive sleep apnea

The Veteran contends that he has obstructive sleep apnea which was caused by his active service.   

The Veteran underwent a sleep study on December 23, 2014, approximately 3 weeks following his discharge from service.  The sleep study report reflects a diagnosis of obstructive sleep apnea.  Accordingly, the first element of service connection, the existence of a present disability, has been met. 

With respect to whether there was an in-service incurrence or aggravation of a disease or injury, the evidence supports a finding of in-service obstructive sleep apnea.  Although the Veteran’s service treatment records do not contain a diagnosis of obstructive sleep apnea, the records show that the Veteran reported recurrent nocturnal awakenings on many occasions, which he attributed to having to urinate, and that the Veteran ultimately requested a referral for a sleep study on November 18, 2014, but was unable to obtain one while in service.  The Veteran’s June 2014 Report of Medical History for discharge reflects that the Veteran reported frequent trouble sleeping.  Accordingly, the Board finds that there is probative evidence of in-service incurrence of obstructive sleep apnea, and thus the second element to establish service connection has been met.  

Concerning a causal relationship, or nexus, between the Veteran’s present obstructive sleep apnea disability and service, there are two medical opinions of record.  In a December 2017 letter, Dr. E.H. O., a private, Board certified sleep medicine physician, stated that the Veteran had been a patient under his care since December 2014.  He further stated that he reviewed the Veteran’s service records, which showed that the Veteran had experienced symptoms of frequent nocturnal awakenings and urination beginning in 2011 and that he was treated with medication with no relief.  Dr. E.H. O. opined that it is at least as likely as not that the Veteran’s sleep apnea was incurred in or caused by in-service injury, event or illness.  

An October 2018 VA examiner opined that the Veteran’s obstructive sleep apnea is less likely than not proximately incurred in or caused by an in-service injury, event or illness.  As rationale, the VA examiner stated that although the Veteran noted having frequent trouble sleeping in the June 2014 report of medical history upon discharge from service, the Veteran attributed his frequent nocturnal awakenings to having to urinate, and thus, in the VA examiner’s opinion, the Veteran’s frequent nocturnal awakenings were not the result of apneas or hypopneas. 
 opined that it is at least as likely as not that the Veteran’s sleep apnea was incurred in or caused by in-service injury, event or illness.  

An October 2018 VA examiner opined that the Veteran’s obstructive sleep apnea is less likely than not proximately incurred in or caused by an in-service injury, event or illness.  As rationale, the VA examiner stated that although the Veteran noted having frequent trouble sleeping in the June 2014 report of medical history upon discharge from service, the Veteran attributed his frequent nocturnal awakenings to having to urinate, and thus, in the VA examiner’s opinion, the Veteran’s frequent nocturnal awakenings were not the result of apneas or hypopneas.  As further rationale, the VA examiner stated that sleep apnea may only be diagnosed based on objective findings and there is no in-service diagnosis of sleep apnea.  

The Board finds that the October 2018 VA examiner’s opinion is not adequate, as it was based on the absence of a diagnosis of sleep apnea in service.  It is well established by law that the absence of a diagnosis in service is not fatal to a claim.  Regulations also provide that service connection may be granted for any disease 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).  Further, the Board finds that the VA examiner improperly relied on the Veteran’s statements that the cause of his frequent nocturnal awakenings was urinary frequency, as rationale for the opinion that the Veteran’s frequent nocturnal awakenings were not related to apneas or hypopneas.  The examiner did not address why having a need to urinate upon awakening excluded apnea as the cause of the awakening.  As such, the VA examiner did not offer an adequate statement or reasons or bases for his opinion.  Thus, the Board affords the October 2018 VA examiner’s opinion lesser probative value.  

The Board finds Dr. E.H. O.’s opinion that the Veteran’s in-service complaints of frequent nocturnal awakenings are evidence of in-service obstructive sleep apnea, is highly probative.  Dr. E.H. O., a Board-certified sleep medicine physician, treated the Veteran for three years, and his opinion is based on a review of the Veteran’s record.  Thus, the Board affords Dr. E.H. O.’s opinion great probative weight.  

Finally, the fact that the official diagnosis of sleep apnea was not made until after discharge does not preclude a finding of service connection, as all the probative evidence of record establishes that the Veteran’s obstructive sleep apnea was incurred in service.  See 38 C.F.R. § 3.303 (d).  Thus, the Board finds that service connection for obstructive sleep apnea is warranted.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(d).

 

 

U. R. Powell

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. E. Leary, Associate Attorney

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.