Citation Nr: 0336453 Decision Date: 12/24/03 Archive Date: 12/29/03 DOCKET NO. 03-00 071A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea secondary to service-connected sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from March 1968 to September 1984. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs Regional Office in St. Petersburg, Florida. In a July 1985 rating decision, the RO granted service connection for sinusitis as noncompensably disabling, effective from September 11, 1984. The veteran filed his original claim for service connection for sleep apnea secondary to his service-connected sinusitis, in September 2000. In a May 2001 rating decision, the RO denied service connection for sleep apnea on a direct and secondary basis, noting that there was no objective medical evidence showing that sleep apnea was either incurred in or aggravated by service or was caused by sinusitis. The RO confirmed its earlier denial in a December 2001 rating decision issued in January 2002. The same month, the veteran asked the RO to reconsider its denial. In September 2002, the RO confirmed its two earlier denials and this appeal ensued. FINDINGS OF FACT 1. VA has expended sufficient effort to obtain all relevant evidence needed for an equitable disposition of, and adequately notified the veteran of the evidence necessary to substantiate, the issue on appeal. 2. The evidence shows that the veteran's sleep apnea has been aggravated by his service-connected sinusitis. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, his sleep apnea is aggravated by his service-connected sinusitis. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2003); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2000, the Veterans Claims Assistance Act (VCAA) was enacted and became effective. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The VCAA essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim and provides that VA will notify the claimant and the claimant's representative, if any, of information required to substantiate a claim and will assist the claimant in obtaining evidence necessary to substantiate a claim. VA issued regulations to implement the VCAA in August 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003)). The amendments became effective on November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds no prejudice to the appellant in this case by proceeding with the adjudication of the issue of entitlement to service connection for sleep apnea. VA has complied with the notice and duty to assist provisions of the VCAA. Specifically, the veteran was advised by VA of the information required to substantiate his claim. In this regard, the Board notes that collectively, by various informational letters, August 2002 and April 2003 VCAA letters, various rating decisions, and the statement of the case (SOC), the veteran was provided with information regarding the evidence needed to substantiate his claim. To establish service connection for sleep apnea, the veteran needed to show that he had the disorder and that it was secondary to his service-connected sinusitis. Additionally, in the August 2002 and April 2003 VCAA letters and the September 2002 SOC, the veteran was given specific information with respect to the changes in the law pursuant to the VCAA, as well as to the new VA duties to assist under the VCAA. The veteran was also given the opportunity to identify additional relevant evidence that might substantiate his claim. He provided copies of a November 1999 VA sleep study, showing that he had obstructive sleep apnea, and a June 2001 medical opinion from his VA treating physician, opining that chronic sinusitis contributed significantly to his obstructive sleep apnea. VA examined the veteran in February 2001. The veteran and his representative have provided additional argument and comment. The Board is not aware of the existence of additional relevant evidence in connection with the claim on appeal. In light of the foregoing, the Board finds that the RO has notified the veteran of the evidence needed to substantiate his service-connection claim and has obtained and fully developed all relevant evidence necessary for an equitable disposition. Moreover, in light of the decision granting service connection on a secondary basis, the Board finds there has been no prejudice to the veteran in this case that would warrant further notice or development, the veteran's procedural rights have not been abridged, and the Board will proceed with appellate review. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Analysis In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Additionally, service connection may be granted for a disorder found to be proximately due to, or the result of, a service-connected disability, including on the basis of aggravation. 38 C.F.R. § 3.310 (2003); Allen v. Brown, 7 Vet. App. 439 (1995). Generally, when a veteran contends that a service-connected disorder has caused a new disability, there must be competent medical evidence that the secondary disability was caused or chronically worsened by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). Service connection for sinusitis currently is in effect as 10 percent disabling. In September 2000, the veteran submitted copies of VA treatment records, which included the results of a November 1999 VA sleep study, and showed continuing treatment for sleep apnea. The November 1999 sleep study reflected a diagnosis of obstructive sleep apnea - REM related and noted that REM events were positional - twice as common in the supine position. February 2001 VA pulmonary function tests (PFTs) were normal with reduced functional residual capacity secondary to a decreased expiratory reserve volume, which was most likely secondary to the veteran's body habitus. A February 2001 VA examination report shows that the veteran had been diagnosed with obstructive sleep apnea and was seen by the VA pulmonary service. Since starting continuous positive airway pressure (CPAP) treatment in August 2000, the veteran had had a significant decrease in snoring. On examination, he did not have any purulent green sputum or any frontal or maxillary sinus tenderness. His lungs were clear to auscultation. The examiner noted that the veteran did not have any evidence of sinusitis and that the veteran denied green purulent discharge or sinus tenderness. He was on amoxicillin, which the examiner suspected was for some mild yellow sputum production. The examiner added that chronic sinusitis was not an obvious cause of obstructive sleep apnea in the veteran, which was significantly improved with CPAP. The examiner stated that the veteran did not have any obvious sinusitis on examination and opined that the veteran's sleep apnea was not secondary to his sinusitis. Subsequent VA treatment records show continuing treatment for sinusitis and sleep apnea. In a June 2001 VA record, the veteran's treating physician stated that the veteran had chronic sinusitis and had been treated by VA with medications that had given intermittent relief of his symptoms of difficult breathing; that he continued to have problems with upper airway obstruction for which surgery was not an option; and that the veteran had been recently tested and found to have significant sleep apnea, which had been treated by the usual methods with some improvement in his clinical symptoms. The veteran's treating physician opined that it is as likely as not that the veteran's chronic sinusitis, if not the total cause, contributes significantly to his obstructive sleep apnea. A close review of the service medical records reveals no evidence showing that the veteran incurred sleep apnea during service, and indeed, he does not contend otherwise. However, for purposes of establishing secondary service connection, there is post-service VA medical evidence that reflects that the veteran suffers from sleep apnea, diagnosed following a November 1999 VA sleep study. While the record clearly supports a finding that the veteran suffers from sleep apnea, the record is equivocal regarding the effect that the veteran's service-connected sinusitis has on his sleeping disorder. In the opinion of the February 2001 VA examiner the veteran's sinusitis was not an obvious cause of the veteran's sleep apnea. Test results appear to indicate that the veteran's sleep apnea is positional in nature, being twice as common in the supine position. However, a more recent medical opinion from his VA primary care physician indicates that the veteran's chronic sinusitis, if not the total cause, contributes significantly to his obstructive sleep apnea. In light of the above medical evidence showing a relationship between the veteran's chronic sinusitis and his sleep apnea, the Board determines that 38 C.F.R. § 3.102 (2003) should be applied in this case. Under 38 C.F.R. § 3.102, when a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in the veteran's favor. A reasonable doubt is one, which exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, resolving all reasonable doubt in favor of the veteran, the Board determines that his current sleep apnea disorder is aggravated by his service- connected sinusitis. Accordingly, entitlement to service connection for sleep apnea, claimed as secondary to the service-connected sinusitis, is granted on the basis of aggravation. 38 C.F.R. §§ 3.102, 3.310(a); Allen, 7 Vet. App. at 446-48. ORDER Service connection for sleep apnea secondary to service- connected sinusitis is granted on the basis of aggravation. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2