Citation Nr: 1311045 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 06-24 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entailment to service connection for sleep apnea, to include as secondary to sinusitis and an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1989. This matter comes to the Board of Veterans' Appeals (Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2010, the Veteran was afforded a Travel Board hearing. A transcript of the hearing has been associated with the record. In August 2011 this matter was before the Board, at which time it was remanded for further development, which was completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In November 2012, the Board referred the case to the Veterans Health Administration ("VHA") for a medical opinion from a somnologist concerning the etiology of the Veteran's claimed obstructive sleep apnea. In January 2013, the opinion was received and associated with the claims folder; the Veteran and his representative were subsequently furnished a copy of the opinion and advised that the appellant had 60 days to submit relevant evidence or argument in response. See 38 C.F.R. §§ 20.901, 20.903 (2012). In February 2013, the Veteran indicated that he had no further argument or evidence to submit and that he would like the Board to immediately proceed with the adjudication of this appeal. FINDING OF FACT It has been shown by competent and probative evidence to at least equipoise that the Veteran's sleep apnea, first noted in May 2001, has been chronically worsened by his service-connected recurrent sinusitis. CONCLUSION OF LAW Entitlement to service connection for sleep apnea as a result of aggravation by service-connected recurrent sinusitis is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Considering the favorable outcome detailed below as to the grant of this claim, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310 (2011); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. at 448; see also 38 C.F.R. § 3.322. The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, was amended during the course of the Veteran's claim and appeal. The intended effect of this amendment was to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). However, given the possibility that these changes could potentially be interpreted as substantive, and because the Veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 that was in effect before the change, which arguably favors the claimant. Accordingly, the Board will evaluate the claimed disability, irrespective of any baseline. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records do not document any assessed sleep apnea. They do, however, note problems sleeping with symptomatic recurrent sinusitis. See November 1988 Report of Medical History. Nevertheless, at separation, sleep apnea was not assessed on clinical evaluation. See November 1988 report of Medical Examination. The earliest mention of sleep apnea appears in a January 2001 VA mental health note. The note documents an impression of presumptive sleep disorders, sleep apnea and PLMS (periodic leg movement syndrome). A May 2001 private record from the Springfield Memorial Hospital documents that the Veteran had been referred to the clinic by his VA psychiatrist for a chief complaint of inadequate sleep and tiredness upon awakening for years. The record documents that the Veteran was being treated for depression and PTSD, and notes that he had numerous medical problems. Sleep apnea syndrome and multiple medical problems as noted, were assessed; however, the etiology of sleep apnea was not discussed. In April 2002, the Veteran was afforded a VA examination, albeit unrelated to sleep apnea. The examination report notes that the Veteran, however, did have this condition. A June 2003 private treatment record in the form of a letter outlines that the Veteran was first formally evaluated for sleep apnea in May 2001 and was found to have obstructive sleep apnea at that time. The letter notes that treatment with CPAP was effective. In a November 2004 statement, the Veteran offered, inter alia, his assertions as to why service connection for sleep apnea should be granted. In particular, he felt that his then yet-to-be service-connected psychiatric disability had resulted in this condition, particularly resulting from alcohol abuse and insomnia. In a July 2005 statement, he offered similar assertions, noting also that the condition was not helped by nightmares and migraine headaches. In a July 2006 statement, he asserted that sleep apnea was directly attributable to posttraumatic stress disorder (PTSD). Of record is a March 2009 VA psychiatry outpatient note pertaining to treatment for PTSD and depression. The note documents that the Veteran then related that he had not used his CPAP for about 6 months due to sinus problems. At his February 2010 Board hearing, the Veteran testified that he had never been treated for sleep apnea while on active duty. Rather, he testified that it was his belief that his sleep apnea was caused and/or aggravated by PTSD and/or his sinus condition. He related that his primary care doctor had indicated that there was a possible link between the sleep apnea and PTSD and/or his recurrent sinusitis. He outlined a history of numerous sinus surgeries, as well. In August 2011, the Board remanded the claim to obtain an examination and etiology opinion on the Veteran's sleep apnea, particularly in light of his contentions, outlined above. In November 2011, he was afforded a sleep apnea examination, which resulted in a continued assessment of sleep apnea, as well as a psychiatric examination. Each examination also resulted in a negative etiological opinion. The sinus examiner, ascribed the Veteran's sleep apnea to his body mass index (BMI) and aging. The psychiatric examiner noted that there was no preponderance of scientific literature to support the claim of a psychiatric cause for the Veteran's sleep apnea and that their research showed, rather, that obesity and craniofacial abnormalities were definitive risk factors for sleep apnea. In September 2012 written argument, the Veteran's representative urged that service connection on a secondary basis be awarded for sleep apnea. They took issue with the November 2011 VA opinions, noting that the examiners did not comment on what role service-connected psychiatric disability had on the Veteran's BMI and thus his sleep apnea. The representative urged that the claim be granted on this causative basis, as well. In November 2012, the Board sought an expert medical opinion from VHA on the claim, which was obtained and associated with the claims file in January 2013. The opinion notes that the examiner, a somnologist, was asked to address whether it was at least as likely as not that the Veteran's recurrent sinusitis either caused or aggravated his sleep apnea, whether it was at least as likely as not that the Veteran's service-connected PTSD and depressive disorder, NOS, had affected the Veteran's lifestyle in such a manner that he developed a higher BMI and, if so, whether it was at least as likely as not that the Veteran's BMI caused or aggravated his sleep apnea. In regards to the Veteran's service-connected psychiatric disability, and its relationship to his BMI and ultimately sleep apnea, the specialist rendered a negative opinion, noting that the Veteran's weight gain was consistent with a normal weight gain pattern. They also related that they could not say that a patient with PTSD or depressive disorder was more likely to develop sleep apnea; however, they chose to defer this question to a psychiatrist. In regards to the Veteran's service-connected recurrent sinusitis and sleep apnea, however, the specialist rendered a positive opinion. The specialist explained that the diseases that limited airflow in the upper airway, such as sinusitis, were known to aggravate obstructive sleep apnea. They concluded "[t]herefore, that a patient who is borderline for Obstructive Sleep Apnea [could] develop mild Sleep Apnea after developing allergic rhinitis or Sinusitis." In resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise, and the claim is therefore granted. Although it appears to the Board that the Veteran's sinusitis predated his sleep apnea by many years, the evidence indicates that recurrent sinusitis at least as likely not has aggravated his sleep apnea. Notably, the Veteran has had numerous surgeries on his sinuses and craniofacial deformities have been identified as a risk factor for sleep apnea. See November 2011 VA examination report. Most saliently, the recent medical expert has found it at least as likely as not that the Veteran's sleep apnea has been chronically worsened, i.e. aggravated, by his service-connected recurrent sinusitis. Accordingly, despite the otherwise negative VA etiological opinions, the evidence is balanced by the recent VHA opinion. The appeal is granted on a secondary basis. ORDER Entailment to service connection for sleep apnea as secondary to sinusitis is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs