Glenn A. Harris

Citation Nr: 1616188 Decision Date: 04/22/16 Archive Date: 05/04/16 DOCKET NO. 15-02 781 On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected disabilities. REPRESENTATION Veteran represented by: Daniel Smith, Attorney at Law ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1987 to December 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. FINDING OF FACT The Veteran's obstructive sleep apnea is shown to be etiologically related to the service-connected disabilities. CONCLUSION OF LAW Obstructive sleep apnea is proximately due to the service-connected disabilities. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board is granting the Veteran's claim in full, no discussion of the VA's duties to notify and assist is necessary, as any defect is not prejudicial to the Veteran. In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In a February 2016 brief, the Veteran's attorney asserted that the Veteran's obstructive sleep apnea was caused by his service-connected disabilities, including traumatic brain injury (TBI) with primary insomnia and a deviated nasal septum status post septoplasty. The only matter at issue is whether there is a nexus between the Veteran's currently diagnosed obstructive sleep apnea and his service-connected disabilities. In July 2014, Dr. G.H. completed a Sleep Apnea Disability Benefits Questionnaire (DBQ). Dr. G.H. confirmed the Veteran's diagnosis of obstructive sleep apnea. He opined that it was more likely than not that the obstructive sleep apnea was caused by the service-connected TBI. In November 2014 VA obtained a medical opinion to determine the etiology of the Veteran's sleep apnea. After reviewing the record, the VA examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea was proximately due to or the result of a TBI. She elaborated that sleep apnea is a condition of the upper airway and throat not of the brain. TBI causes damage to the brain rather than the upper airway and throat. In January 2016, A.C., a private registered nurse, provided an opinion regarding the relationship between the Veteran's obstructive sleep apnea and his service-connected disabilities. A.C. reviewed the Veteran's claim file before offering her opinion. After discussing, the relevant medical literature and evidence, she opined that it was likely that the service-connected deviated legal septum contributed to obstructive sleep apnea. She elaborated that the nose accounts for more than 50 percent of the total resistance of the upper airway. Although the Veteran underwent a septoplasty for his deviated septum in 1997, nasal bone imaging studies from July 2012 and December 2012 demonstrated continued nasoseptal deviation to the right. The irregular shape of the nasal septum could partially block the passage of air and interfere with breathing. She added that it was at least as likely as not that the service-connected TBI contributed to the onset of the Veteran's obstructive sleep apnea. In support of her opinion, she cited a variety of studies that showed TBI is a risk factor for the development of obstructive sleep apnea. The Board finds that the private positive nexus opinions are the most probative opinions of record. A.C.'s opinion, in particular, was based upon an extensive review of the record and a detailed discussion of relevant medical literature. The November 2014 VA examiner's opinion is inadequate as it does not address the relationship between obstructive sleep apnea and the service-connected deviated nasal septum or consider relevant studies. The November 2014 VA opinion also fails to address whether the Veteran's obstructive sleep apnea was aggravated beyond its natural progression by the service-connected disabilities. The weight of the evidence demonstrates that the Veteran has obstructive sleep apnea that was caused by his service-connected disabilities. Therefore, service connection for obstructive sleep apnea is granted on a secondary basis. ORDER Service connection for sleep apnea secondary to the service-connected disabilities is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals