Citation Nr: 0813116 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 07-23 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran retired in June 1973 after more than 21 years of active service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In that rating decision, in pertinent part, the RO denied service connection for sleep apnea, and the veteran's disagreement with that decision led to this appeal. The veteran testified before the undersigned at a hearing held at the RO in February 2008. In April 2008, the Board granted the veteran's motion to advance his appeal on the Board's docket. The Board notes that that on his VA Form 9, received at the RO in June 2007, the veteran made statements indicating he may be seeking service connection for tremors, a nervous disorder, and a total rating based on individual unemployability due to service-connected disabilities. If it has not already done so, the RO should seek clarification as to the benefits sought by the veteran and take further action, as appropriate. FINDING OF FACT Medical evidence establishes that the veteran's service- connected deviated nasal septum aggravates his sleep apnea. CONCLUSION OF LAW Service connection for sleep apnea is established. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board acknowledges that VA has duties related to notice and assistance to a claimant in the development of a claim as mandated under the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007). In this case, the Board concludes that no further notice or assistance is required as the outcome of the Board's decision is favorable to the veteran, and no prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384. 393 (1993). The veteran is seeking service connection for sleep apnea. Although his wife, who is a registered nurse, has stated that the veteran has had sleep apnea since the early 1960s, his service medical records include no complaint or diagnosis pertaining to sleep problems or sleep apnea. The veteran has submitted private medical records showing he was diagnosed as having sleep apnea following a private sleep study in May 2005, and the essence e of the veteran's argument with regard to his entitlement to service connection for sleep apnea is that his service-connected deviated septum and allergic rhinitis aggravate his sleep apnea. In support of his contentions, the veteran has submitted the reports of two sleep studies done at Healthpark Hospital in May 2005 and office notes and statements from private physicians dated from March 2005 to February 2006. The records indicate that D.B., M.D., referred the veteran for the sleep studies, and at the time of the first study in early May 2005, it was noted the veteran had a history of loud snoring and awakening frequently at night because of that. It was also reported that he had apparently been observed to stop breathing and then to awaken suddenly. The study report included quantitative data, and the physician's impression after the study was obstructive sleep apnea syndrome. The physician said this was mild in terms of frequency, but did cause significant arousal of sleep. At the next sleep study in late May 2005, which was done for a CPAP (continuous positive airway pressure) titration study, the impression after the ploysomnogram was obstructive sleep apnea syndrome, well controlled with positive airway pressure. The physician noted the veteran did not tolerate CPAP satisfactorily but was well controlled with BiPAP (bi- level positive airway pressure), and he recommended a BiPAP device for home use. Later records and letters from private physicians discuss nasal congestion and obstruction associated with the veteran's service-connected allergic rhinitis and deviated nasal septum. Those physicians noted the veteran had been diagnosed as having obstructive sleep apnea. One noted that the BiPAP gave the veteran a lot of trouble because he cannot breathe through his nose, and in his letter dated in February 2006, Dr. D.B. stated that he had difficulty treating the veteran's sleep apnea because of the deviated nasal septum. At a VA examination in August 2006, the veteran reported that approximately a year prior to the examination he had a polysomnogram and was diagnosed as having a positive obstructive sleep apnea and had been prescribed a CPAP machine. The veteran stated the CPAP machine had helped but he had gone through two or three adjustments with the pressure and mask because of irritation in his nose, especially the left nostril. The veteran reported that even with adjustments he often took off the mask in the middle of the night because of discomfort and sometimes did this in his sleep and either way did not return it. After examination, the impression included: mild allergic rhinitis; deviated nasal septum, left side, complete blockage; and obstructive sleep apnea. The examiner stated he reviewed the veteran's service medical records and other records and noted the veteran's past evaluations, recommendations, and treatment by other physicians. The VA examiner said it was his opinion that the veteran's obstructive sleep apnea is significantly aggravated by his deviated nasal septum. He said it is at least as likely as not that the deviated nasal septum is causing a significant aggravation to the corrective use of the veteran's CPAP machine therapy for his obstructive sleep apnea. The examiner further sated that it is less likely that the obstructive sleep apnea is caused by the allergic rhinitis or by the deviated nasal septum. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303. Disability that is proximately due to or the result of a service-connected disease or injury will be service connected as well. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a). This necessarily includes any increase in disability that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by the service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to provide that any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 38 C.F.R. § 3.310(b) (effective October 10, 2006). It is VA's consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in each case. When, after careful consideration of procurable and assembled data, a reasonable doubt arises regarding service connection, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). The veteran's service-connected disabilities include allergic rhinitis, rated as noncompensably disabling, and deviated nasal septum, rated as 10 percent disabling. In this case, the VA examiner, who reviewed the record, has expressed an explicit opinion that the veteran's service- connected deviated nasal septum aggravates his obstructive sleep apnea, and there is no medical evidence to the contrary. The Board recognizes that 38 C.F.R. § 3.310(a) requires evidence of a baseline level of severity of the nonservice-connected disease or injury. Here, the results of the May 2005 sleep studies establish the baseline level of severity of the veteran's obstructive sleep apnea, and given the VA medical opinion dated in August 2006, in which the VA physician determined that the veteran's service-connected deviated nasal septum significantly aggravates the sleep apnea, it is reasonable to expect the medical opinion was based on evidence of the baseline and the current level of disability of the nonservice-connected sleep apnea. See 71 Fed. Reg. 52774-52747 (Sept. 7, 2006) (Supplementary Information pertaining to Claims Based on Aggravation of a Nonservice-Connected Disability, Final Rule). The record does include a September 2006 study report from the Arkansas Sleep Disorder Diagnostic Center with a note that later follow-up was planned. This report, together with further clinical studies that may be ordered by the RO, may be used in assignment of a disability rating. In any event, the Board finds that medical evidence establishes that the veteran's service-connected deviated nasal septum aggravates his sleep apnea and therefore concludes that service connection for sleep apnea is in order. ORDER Service connection for sleep apnea is granted secondary to the veteran's service-connected deviated nasal septum. ____________________________________________ ROBERT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs