Citation Nr: 0510308 Decision Date: 04/11/05 Archive Date: 04/21/05 DOCKET NO. 03-24 549 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a sleeping disorder (sleep apnea), secondary to service-connected residuals of left zygomatic arch fracture with headaches. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from June 1975 to June 1978, and from January 1979 to October 1996. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating action of November 1997, by the St. Petersburg, Florida, Regional Office (RO), which denied the veteran's claim of entitlement to service connection for sleep apnea. A notice of disagreement with that determination was received in September 1998. Subsequently, a rating action of September 2002 confirmed the previous denial of the veteran's claim for sleep apnea, claimed as a sleep disorder, secondary to residuals of left zygomatic arch fracture with headaches. A statement of the case (SOC) was issued in August 2003, and a substantive appeal was received in August 2003. FINDING OF FACT The diagnosed sleep apnea cannot be clearly dissociated from the service-connected left zygomatic arch fracture with headaches. CONCLUSION OF LAW Resolving reasonable doubt in favor of the veteran, the Board finds that the veteran's sleep disorder, diagnosed as sleep apnea, is proximately due to or the result of his service- connected residuals of a left zygomatic arch fracture with headaches. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (a) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA). On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). In addition, VA promulgated regulations to implement the provisions of the law. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). In light of the Board's decision to allow the benefit sought on appeal, there is no need to discuss compliance with the VCAA. II. Factual background. The records indicate that the veteran served on active duty from June 1975 to June 1978, and from January 1979 to October 1996. The service medical records indicate that the veteran sustained an injury to the left side of the jaw and left temple area while playing soccer in 1981; he was diagnosed with fracture of the left zygomatic arch. The service medical records indicate that the veteran also received clinical attention for complaints of headaches. The records do not reflect any complaints or findings of a sleep disorder. The veteran's claim for service connection for a sleep disorder was received in June 1997. Submitted in support of the veteran's claim was a statement from his wife, indicating that she and the veteran had been married for 19 years. She attested to the fact that the veteran suffered a head injury during a championship game in service; he fell on his head and hit the ground. She noted that he lost consciousness and was taken to Berlin Hospital and received treatment. She noted that he has suffered from a number of disabilities since that injury, including a sleeping disorder. VA progress notes, dated from May 1997 through July 1997, reflect treatment for several disabilities, including a sleep disorder. The veteran was seen in May 1997, requesting evaluation to rule out sleep apnea. The wife noted that the veteran snored, and he sometimes quits breathing for long periods of time. No pertinent diagnosis was reported. During a clinical visit in July 1997, the veteran complained of episodes of frontal headaches, radiating around the entire head. It was noted that the veteran had sleep apnea. The impression was questionable long uvula. By a rating action of November 1997, the RO granted service connection for residuals of left zygomatic arch fracture with headaches; a 10 percent disability rating was assigned, effective November 1, 1996. Medical evidence of record, including VA as well as private treatment reports, dated from August 1997 through December 2001, show ongoing treatment for several disabilities, including residuals of left zygomatic fracture, headaches, cervical pain, and other musculoskeletal disabilities. Among these records is a medical statement from David Perlmutter, M.D., a Board Certified Neurologist, dated in June 2001, indicating that the veteran was under his care for treatment of persistent headaches and neck pain, which developed as a result of the left zygomatic fracture that he suffered while on active duty. In a statement dated in March 2002, Dr. David Perlmutter stated that the veteran was suffering from headaches and sleep difficulties. Dr. Perlmutter stated that it was his opinion that the veteran's sleep disorder and his headaches were secondary to his traumatic brain injury. The veteran was afforded a VA compensation examination in May 2002, at which time it was noted that the veteran fell and hit the left side of his face while playing soccer in service; he suffered a fracture of the left cheek, or the left zygomatic bone of the left side of the face. The veteran indicated that he had had difficulty sleeping and ringing in his ears. The veteran admitted to snoring; and, he noted that he had sleep studies about 4 years ago using a breathing mask, which sounded like the CPAP (continuous positive airway pressure) device, given for obstructive sleep apnea. Following a physical examination, the veteran was diagnosed with a sleep disorder. The examiner noted that the veteran was status post head trauma during a soccer game in the service 20 years ago. The veteran was also diagnosed with a sleep disorder, which the examiner determined was as likely as not sleep apnea; he stated that his diagnosis was based on the veteran's description of the sleep test. The examiner also stated that sleep apnea cannot be related to the service-connected injury without resorting to speculation. III. Legal analysis. Pertinent regulations provide that service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition is considered part of the original condition. 38 C.F.R. § 3.310(a) (2003). In addition, when aggravation of a nonservice-connected disorder is proximately due to or the result of a service- connected disability, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. The term "disability" as used in 38 U.S.C.A. § 1110 refers to impairment of earning capacity, and such definition mandates that any additional impairment of earning capacity resulting from a service-connected disability, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected disability, shall be compensated. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Furthermore, under the provisions of 38 C.F.R. § 3.102, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Following a thorough review of the evidence of record, the Board concludes that service connection is warranted for a sleep disorder, diagnosed as sleep apnea, because the probative evidence both for and against the claim is in relative equipoise concerning whether it is attributable to the veteran's already service-connected zygomatic arch fracture with headaches. Consequently, he receives the benefit of the doubt because the favorable evidence is about evenly balanced in comparison to the unfavorable evidence. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In order to show that a disability is proximately due to or the result of a service-connected disease or injury, the veteran must submit competent medical evidence showing that the disabilities are causally related. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Here, the veteran is service- connected for residuals of left zygomatic arch fracture with headaches, as well as headaches associated with zygomatic arch fracture. The record clearly documents a diagnosis of a sleep disorder, sleep apnea. In May 2002, a VA examiner indicated the veteran's sleep apnea cannot be related to the service-connected injury without resorting to speculation. However, in a previous medical statement, in March 2002, the veteran's treating physician, a certified neurologist, stated that the veteran's sleeping disorder and headaches were secondary to his traumatic brain injury. In assessing the evidence of record, the Federal Circuit Court has held that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (1997). See also Owens v. Brown, 7 Vet. App. 429, 433 (1995). The U.S. Court of Appeals for Veterans Claims also has held, "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). In this particular case, the Board determines that the positive medical opinion provided by the veteran's private treating physician, in March 2002, is at least as probative, if not more so, than the opinion provided by VA examiner in May 2002. The veteran's treating physician has been treating him ever since his discharge from military service, and is familiar with the residuals of his service-connected zygomatic arch fracture. He indicated that both the sleeping disorder and the headaches were a direct result of the service-connected disorder; in fact, service connection has been established for headaches secondary to the zygomatic arch fracture. The VA examiner, on the other hand, in May 2002, simply stated that the veteran's sleep apnea cannot be related to the service-connected injury without resorting to speculation, without providing any underlying reasoning or rationale to support his opinion. So the competent medical evidence of record is in relative equipoise concerning whether the veteran developed a sleeping disorder, currently diagnosed as sleep apnea, as a result of his service-connected zygomatic arch fracture. Therefore, as alluded to earlier, this doubt is resolved in his favor, and his claim for secondary service connection for sleep apnea, claimed as a sleeping disorder, must be granted. See 38 C.F.R. §§ 3.102. ORDER Service connection for sleep apnea (claimed as a sleep disorder) is granted. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs