Citation Nr: 0721554 Decision Date: 07/18/07 Archive Date: 08/02/07 DOCKET NO. 05-28 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, including as secondary to the veteran's service- connected disabilities. 2. Entitlement to service connection for restless leg syndrome, including as secondary to the veteran's service- connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had verified active service from June 1989 through March 1993, with additional periods of unverified reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. FINDINGS OF FACT 1. Competent medical evidence shows that it is as likely as not that the veteran's service-connected allergic rhinitis aggravated his obstructive sleep apnea. 2. The competent medical evidence of record is in equipoise as to whether the veteran's service-connected PTSD has aggravated his currently diagnosed restless leg syndrome. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C.A. § 1110, 1131, 5107 (West 2005); 38 C.F.R. § 3.310(a) (2006). 2. The criteria for service connection for restless leg syndrome are met. 38 U.S.C.A. § 1110, 1131 (West 2005); 38 C.F.R. § 3.310(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for obstructive sleep apnea (OSA) and restless leg syndrome (RLS). He alleges that both of these disabilities are secondary to his service connected disabilities. Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may be found where a service-connected disability aggravates another condition. When aggravation of a nonservice-connected condition is proximately due to a service-connected condition, the 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. Allen v. Brown, 7 Vet. App. 439 (1995). The veteran is service connected for the following disabilities: post-traumatic stress disorder (PTSD); sinus tachycardia; chronic lumbar strain; chondromalacia patella, right knee; chondromalacia patella, left knee; left ankle sprain; plantar fascitis, left heel; plantar fascitis, right heel; bilateral tinnitus; greater trochanteric bursitis, right hip; greater trochanteric bursitis, left hip; allergic rhinitis; and pinguecula, both eyes. Obstructive Sleep Apnea The veteran's OSA has been medically monitored following the August 2001 abnormal sleep study. See August 2001 Wichita VAMC Sleep Study. Following the diagnosis and the veteran's October 2001 claim that his OSA is secondary to his service connected allergic rhinitis, several opinions have been rendered regarding the condition. In March 2002, a VA otorhinolaryngologist examined the veteran and reported that it is rare for nasal obstruction to contribute significantly to the upper airway obstruction of sleep apnea. The examiner opined that the veteran's "OSA likely is mainly due to medication and weight gain." It is worth again noting the multitude of service-connected disabilities that the veteran has for which medication is necessary. See above. As such, this seemingly negative opinion is, in fact, somewhat supportive of the veteran's claim. A connection between allergic rhinitis and OSA was not ruled out, and a connection was made between the veteran's medications and his OSA. In March 2005, however, a clearly negative medical opinion was received in the record. The veteran was afforded a VA respiratory examination. The VA examiner opined that the veteran's allergic rhinitis did not cause his OSA. Rather, the examiner felt the OSA is due to the aging process and the fact that the veteran is obese. The March 2005 examiner's comments were limited to the direct cause of the veteran's OSA. His notes are silent as to whether the veteran's OSA was aggravated by his service connected disabilities, allergic rhinitis in particular. In August 2005, a VA treating physician examined the veteran and again diagnosed rhinitis. In the treatment note, the physician stated that the veteran's rhinitis "is adding to problems" with the sleep apnea given the edema in the upper airway is impending the use of the BiPAP/CPAP. This is clearly an opinion that the service-connected rhinitis is aggravating the OSA. In summary, there are two opinions lending support to the veteran's claim that his OSA is aggravated by his service- connected rhinitis, and one opinion that the rhinitis did not cause the OSA. There is no evidence in the claims folder against the notion that the OSA was aggravated by the rhinitis. At the very least, the evidence regarding whether the veteran's service connected allergic rhinitis has aggravated his OSA is in equipoise. As such, under 38 U.S.C.A. § 5107, the veteran's claim for service connection for obstructive sleep apnea, as secondary to his service connected allergic rhinitis, must be granted. Restless Leg Syndrome The veteran contends that he has restless leg syndrome (RLS) secondary to his service connected post-traumatic stress disorder (PTSD). The veteran's RLS was diagnosed in August 2001. See August 2001 Wichita VAMC Sleep Study. Prior to this diagnosis, a January 2000 outpatient treatment note assessed the veteran's condition as "abnormal limb movements likely secondary to PTSD." Following the August 2001 diagnosis and the veteran's October 2001 claim that his RLS is secondary to his service connected PTSD, several opinions have been rendered regarding the condition. In November 2001, in a VA neurological follow-up note, the physician stated that it is possible that the veteran's "PTSD is accentuating the experience of restlessness in muscles." This lends support to the theory that the veteran's PTSD aggravates his RLS. In January 2003, in a VA psychologist's note, RLS was characterized as an "uncommon diagnosis." Thus, it was explained that etiology is difficult to determine without information from specialists. The physician, following reported research into the area, concluded that due to a lack of research base information and ruling out other physical etiologies, the veteran's "PTSD may contribute in some way to the outward manifestation of restless leg." This, again, lends support to the notion that service-connected PTSD aggravates the veteran's RLS. In March 2005, however, a VA neurological disorders examination report, performed and written by a certified physician's Assistant, indicates that the veteran's RLS is not secondary to his PTSD. The examiner stated that if another opinion were needed, then a psychiatrist's evaluation is recommended. The Board notes that it was a January 2003 psychological determination that suggested the veteran's PTSD may contribute to the veteran's restless leg. See January 2003 VA examination report. It is also worth noting that the March 2005 examiner did not elaborate to provide explanation as to whether both proximate cause and aggravation were considered. Because there are several competent medical opinions in the claims folder that suggest that the veteran's service- connected PTSD aggravates his RLS, and only one less than explanatory negative opinion that it does not, the preponderance of the evidence is at least in equipoise and as such, the Board finds that service connection for restless leg syndrome as secondary to the veteran's service connected PTSD is warranted. Duties to Notify and Assist A discussion addressing whether VA's duties to notify and assist the veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the veteran in the development of his claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determinations reached in this case, no prejudice will result to the veteran by the Board's consideration of this appeal at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to the veteran's service-connected allergic rhinitis, is granted. Entitlement to service connection for restless leg syndrome, including as secondary to the veteran's service-connected PTSD, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs