Citation Nr: 1042328 Decision Date: 11/10/10 Archive Date: 11/18/10 DOCKET NO. 07-34 646 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea claimed as secondary to service-connected headaches and lumbar spine disability. 2. Entitlement to service connection for diabetes mellitus, type 2, claimed as secondary to service-connected headaches and lumbar spine disability. 3. Entitlement to service connection for hypertension claimed as secondary to service-connected headaches and lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.B. Freeman, Associate Counsel INTRODUCTION The appellant served on active duty from January 1971 to January 1974 and from April 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the RO in Waco, Texas, which denied service connection for sleep apnea and from a July 2007 rating decision which, in pertinent part, denied service connection for hypertension and diabetes mellitus, type 2. The appellant testified before the undersigned at a February 2010 hearing at the RO. A transcript has been associated with the file. FINDINGS OF FACT 1. The appellant's sleep apnea is at least as likely as not caused by the appellant's obesity, which was caused by his service-connected lumbar spine disability and service-connected headache disability. 2. The appellant's diabetes mellitus, type 2, is at least as likely as not caused by the appellant's obesity, which was caused by his service-connected lumbar spine disability and service- connected headache disability. 3. The appellant's hypertension is at least as likely as not caused by the appellant's obesity, which was caused by his service-connected lumbar spine disability and service-connected headache disability. CONCLUSIONS OF LAW 1. Sleep apnea was incurred as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). 2. Diabetes mellitus, type 2, was incurred as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). 3. Hypertension was incurred as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) The claims for service connection have been granted, as discussed below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. Service Connection The appellant contends that his service-connected headaches and lumbar spine disability resulted in inactivity, which lead to obesity, which in turn caused his sleep apnea, diabetes mellitus, type 2, and hypertension. For the reasons that follow, the Board concludes that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a) (2010). Secondary service connection may also be established for a disorder which is aggravated by a service- connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id. The appellant's VA treatment records show current diagnoses of sleep apnea, diabetes mellitus, type 2, and hypertension. The appellant's private treatment show similar diagnoses. The element of current disability is well-established. The appellant is currently service-connected for lumbar degenerative disc and joint disease, rated as 60 percent disabling, headaches associated with lumbar degenerative disc and joint disease, rated as 50 percent disabling, gout of multiple joints, rated as 20 percent disabling, hemorrhoids with anal fissure, rated as 20 percent disabling, and hiatal hernia with gastroesophargeal reflux disease, rated as 10 percent disabling. The remaining question is whether the appellant's service- connected disabilities caused or aggravated his sleep apnea, diabetes mellitus, type 2, or hypertension. The appellant has submitted a January 2005 statement from a neurosurgeon, Dr. S., which indicates that the appellant has gained weight due to his inactivity or failure to exercise due to his painful lower back condition, awkward gait, plantar calcaneal spur, gout and migraine headaches. The appellant also submitted a November 2005 statement from a Dr. R., which indicates that the appellant's headaches and low back disability cause him to wake repeatedly during the night. The sleeping disorder has been increasing over time. The appellant reported sleep apnea like symptoms during his second period of active service. The doctor indicated that the diagnostic devices required for sleep apnea were not available at that time, and the appellant could very unlikely that the sleep apnea could have been identified. Dr. R. concluded that the lower back and headache pain were compounding the sleeping disorder. The appellant was seen for a September 2006 VA examination for his sleep apnea claim. On full examination and review of the claims file, the examiner indicated that the appellant's obstructive sleep apnea was related to his significant weight gain and his service-connected spine conditions. The examiner also indicated that the appellant's inservice sleep complaints were more related to his migraine headaches and spine pain at the time. Whether the appellant had sleep apnea at that time was not clear. The RO determined that the September 2006 opinion was inadequate for failing to provide a rationale for the opinion. The examiner completed an October 2006 addendum indicating that the opinion should have read that the sleep apnea was due to weight gain and pharyngeal narrowing than his service-connected spine condition. The examiner indicated that there are musculoskeletal conditions that cause sleep apnea, but his is not one of them. The appellant obtained additional private medical opinions in support of his claim. Dr. R. submitted a March 2007 opinion. Following an extensive discussion of the particular facts of the case, the doctor concluded that the appellant's service-connected back disability had lead to obesity and thence to sleep apnea, diabetes mellitus, type 2, and hypertension. Dr. S. also submitted a February 2007 opinion concurring in these conclusions. The RO arranged for several VA examination reports and opinions in this claim. May 2007, August 2008 and August 2009 opinions were obtained. In each instance, the appellant's theory that his obesity was due to service-connected disabilities which lead to diabetes mellitus, type 2, hypertension and sleep apnea was not addressed. Additionally, no comment or evaluation of the private opinions was entered into the opinions. Instead, the examiners indicated that a review of medical literature did not show a direct link between the back disability and sleep apnea, diabetes mellitus, type 2, or hypertension. The Board finds that the appellant's sleep apnea, diabetes mellitus, type 2, and hypertension are at least as likely as not the result of his service-connected headaches and lumbar spine disability. The private opinions in support of the claims consider the appellant's medical history, apply general medical principles to the appellant's particular history and provide opinions supported by rationales. Unfortunately, the VA examination reports are not useful in resolving this claim as they do not address the Veteran's principle contention. In addition, they do not offer useful critique of the private opinions submitted in support of the appellant's claims. The Board concludes that service connection is warranted for sleep apnea, diabetes mellitus, type 2, and hypertension on a secondary basis. As such, the Board finds that the evidence is at least in equipoise for the appellant's claims. The benefit-of-the-doubt rule applies, and the Board has resolved all reasonable doubt in favor of the appellant. The claims are granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for sleep apnea claimed as secondary to service-connected headaches and a lumbar spine disability is granted. Entitlement to service connection for diabetes mellitus, type 2, claimed as secondary to service-connected headaches and a lumbar spine disability is granted. Entitlement to service connection for hypertension claimed as secondary to service-connected headaches and a spine disability is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs