Citation Nr: 1016269 Decision Date: 05/03/10 Archive Date: 05/13/10 DOCKET NO. 09-08 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 decision and notice of decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico which denied the Veteran's claim for service connection for sleep apnea. The Board notes that evidence currently of record indicates that the Veteran's sleep apnea disorder is related to a service-connected sinusitis disorder. As such, the Board will review the issue on appeal as a claim for entitlement to service connection for sleep apnea, to include as secondary to sinusitis. The Veteran testified at a Board hearing, conducted via videoconferencing. A transcript is of record. FINDING OF FACT The objective medical evidence indicates that the Veteran's sleep apnea disorder is caused, in part, by a service- connected sinusitis disorder. CONCLUSION OF LAW Service connection for sleep apnea is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminarily, it is noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), became law in November 2000, and was thereafter codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). To implement the provisions of the VCAA, VA promulgated regulations codified, in pertinent part, at 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). The VCAA has also been the subject of various holdings of Federal courts. As the Board herein grants the claim for service connection for sleep apnea, the need to discuss VA's efforts to comply with the VCAA, its implementing regulations, and the interpretive jurisprudence, is obviated. Factual Background. The Veteran essentially contends that his sleep apnea disorder either started in service or caused by his service-connected sinusitis disorder. In service treatment records, dated April 2004, February 2005, and May 2005, respectively, the Veteran reported having difficulty sleeping more than a few hours each night. In a January 2006 VA psychiatric examination report, the examiner diagnosed the Veteran as having severe sleep impairment which interfered with his daily activity. In a January 2006 VA medical examination report, the examiner noted that the Veteran had nasal mucosal edema with clear discharge, resulting in 80 percent obstruction of the left nostril and 50 percent obstruction of the right nostril. An X-ray report showed that the maxillary sinuses were partially opaque. The diagnoses were rhinitis and sinusitis, existent since service. In a May 2006 rating decision, the RO granted service connection for sinusitis. In a May 2007 private treatment record, the Veteran reported having surgery to repair a left-sided deviated septum approximately one and a half years prior to examination. After examination, the diagnosis was obstructive sleep apnea. In a May 2007 private sleep apnea study, the examiner diagnosed severe obstructive sleep apnea syndrome. It was noted that the Veteran responded best to a continuous positive airway pressure (CPAP) apparatus. In an October 2009 statement, a private examiner, John R. Stuart, M.D., reported that the Veteran was a patient of his and that the Veteran currently had sleep apnea. He stated that chronic sinusitis and a septal defect were contributing factors to the Veteran's sleep apnea. He indicated that, at this point, use of CPAP had not been very effective due to the chronic sinusitis. In a January 2010 statement, Dr. Stuart stated that the Veteran's sleep apnea was partly due to his septal deviation. He indicated that the deviated septum would make it more difficulty for the Veteran to breathe in effectively, creating inhaled pressure and opening the upper airway. b. Law and Regulations. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). c. Analysis. The Board finds sufficient evidence to grant the Veteran's claim of service connection for obstructive sleep apnea. The Veteran's complaints of problems sleeping during his last year and a half of service are well documented. Moreover, the Board notes that sleep apnea was diagnosed in May 2007, and most importantly, Dr. Stuart stated that the Veteran's service-connected chronic sinusitis was a contributing factor to the Veteran's sleep apnea disorder. As there is no contradicting medical opinion of record, the Board finds that the preponderance of the evidence supports the Veteran's claim. Accordingly, service connection for sleep apnea is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs