Citation Nr: 1600496 Decision Date: 01/07/16 Archive Date: 01/21/16 DOCKET NO. 11-09 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea, claimed as secondary to service-connected disabilities including treatment for such. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1979 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared at the RO and testified at a hearing before the undersigned Veterans Law Judge in October 2015; a transcript of the hearing is of record. Additional evidence in the form of private medical records dated in October 2015 and an employee performance assessment was submitted into the record at the time of the hearing. While the Veteran did not explicitly indicate that he was waiving initial RO consideration of the evidence, a waiver is unnecessary given that the evidence is favorable to the claim which will be fully allowed on appeal, as will be discussed below. 38 C.F.R. § 21.1304(c). The Board also notes that the Veteran initiated an appeal of the rating assigned for service-connected dysthymia, and that the RO thereafter issued him a statement of the case in February 2015. However, as the Veteran did not perfect his appeal of the issue to the Board with the filing of a substantive appeal, the sole issue on appeal is entitlement to service connection for sleep apnea. The issues of entitlement to an increased rating for a left knee disability, entitlement to service connection for bilateral lower extremity numbness, and entitlement to secondary service connection for disabilities of the right knee, lumbar spine, and ankles were raised on a VA application form filed in October 2015, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT Competent evidence shows that the Veteran has sleep apnea that has been related medically to his service-connected disabilities of dysthymia and lower leg compartment syndrome including medications for such. CONCLUSION OF LAW Service connection for sleep apnea, as secondary to his service-connected disabilities of dysthymia and lower leg compartment syndrome, is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. § 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the decision herein is favorable to the Veteran, VCAA compliance need not be addressed. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that his sleep apnea is related to his service-connected disabilities, specifically his dysthymia and bilateral lower leg compartment syndrome and the medication he takes for these disabilities. He testified in October 2015 that after he was prescribed various medications for his mental disorder and painful joint disabilities, he immediately gained weight and began to experience sleeping difficulties which eventually resulted in a diagnosis of sleep apnea. He claims that his weight gain was a contributing factor that led to his sleep apnea. The Veteran served on active duty in the Army from September 1979 to May 1992. His service treatment records do not show any complaints or diagnosis of sleep apnea or sleeping problems. After service, the RO granted service connection for right and left lower compartment syndrome, effective from October 1993, and for dysthymia, effective from May 2009. The Veteran filed a VA application for disability benefits in December 2009, claiming service connection for sleep apnea. VA outpatient records show a sleep study was conducted in October 2009 and that the resulting diagnosis was moderate obstructive sleep apnea. In January 2010, VA issued the Veteran a CPAP machine for treating his sleep apnea; VA records in August 2015 show that he continued to use CPAP therapy. In February 2014, a VA opinion was sought to determine whether the Veteran's sleep apnea was proximately due to or the result of his dysthymia. The examining physiatrist opined that it was less likely than not that the Veteran's sleep apnea was due to his dysthymia because there was no evidence of a nexus between the two disabilities [presumably, in the medical literature]. The opinion was not accompanied by any rationale, and there was no comment by the examiner as to whether the service-connected dysthymia (or its medication) aggravated sleep apnea. There was also no opinion rendered as to whether there was any relationship between sleep apnea and the Veteran's other service-connected disabilities including treatment for such. In support of his claim, the Veteran submitted additional private medical reports dated in October 2015. On one record, a sleep consultant opined that the Veteran's obstructive sleep apnea was likely not related to military service overseas, but gave no rationale for the conclusion and noted that a 2010 sleep study to confirm the presence of sleep apnea was not available. The consultant advised that the Veteran continue on his CPAP therapy for obstructive sleep apnea and follow up with VA about his condition. In contrast, on a second record, a family nurse practitioner opined that the Veteran's sleep apnea was related to service through his service-connected disabilities, specifically by way of weight gain caused from the medication he took for such service-connected disabilities. She stated that she reviewed the Veteran's service treatment records as well as his more contemporaneous medical records and history. She noted that he has been a patient at her facility since November 2010, and that he has been prescribed multiple medications over the years for service-related pain, dysthymia, and PTSD. She cited to a recent study in a current edition of a medical publication on sleep medicine, which concluded that "service related illnesses are prevalent in military personnel who undergo polysomnography with significant associations between PTSD, pain syndromes, and insomnia." She related that the Veteran was currently taking buspirone, fluoxetine, gabapentin, and trazodone, which were all known to cause weight gain. She felt it was likely that the Veteran's sleep difficulties were aggravated by his service-connected lower leg compartment syndrome and dysthymia, in particular, and that the medications required to treat such disabilities had caused weight gain that was, in turn, causing the sleep apnea to worsen. She noted that sleep disruption caused by obstructive sleep apnea could be exacerbated by certain pain medications and increasing weight, among other things. She also noted that the Veteran had no prior symptoms of thyroid/metabolic issues, and no reported sleep difficulties or weight-related health problems prior to service, and that he had been eating below maintenance for his height and weight yet continued to have difficulty in losing weight. Due to such factors and the sleep study report, she felt it was "likely that [the Veteran] has sleep apnea with an onset that started after his service connected injury and the weight gained as a side effect." She concluded that based on a review of the Veteran's medical records including service records, and the current scientific evidence, it was more likely that his sleep apnea was related to his service. After consideration of the evidence to include the medical records and the Veteran's contentions, the Board finds that there is sufficient competent evidence to support the Veteran's claim that his currently diagnosed sleep apnea was due to service-connected disabilities. While there is a VA opinion that is unfavorable to his claim, such opinion has deficiencies, as previously noted, and does not outweigh the favorable evidence of record. Likewise, an October 2015 private conclusory statement was unfavorable to the claim, but it too cannot be relied upon as probative evidence for the reasons previously stated. Conversely, the private opinion of a treating nurse practitioner in October 2015 is adequate as it is based on a review of the pertinent and significant facts in the record and contains complete rationale that is grounded in cited medical literature. Consequently, the Board finds that the private opinion is entitled to significant probative weight. Considering all the evidence, including the lay and medical evidence, there is satisfactory proof that the Veteran's sleep apnea is etiologically related to his service-connected disabilities of dysthymia and lower leg compartment syndrome and the medications for such. Accordingly, there is competent evidence to support the Veteran's service connection claim. As sleep apnea is proximately due to a service-connected disability, entitlement to service connection on a secondary basis under 38 C.F.R. § 3.310 is warranted. ORDER The appeal seeking service connection for sleep apnea is granted. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs