Citation Nr: 1327950 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-26 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected residuals of nasal septoplasty. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1984 to August 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran's representative submitted additional information pertaining to the Veteran's claim without a waiver of RO initial consideration. However, as the Veteran's claim is being granted in full, a remand for RO initial consideration is not indicated. In a July 2013 appellant's brief, the Veteran's representative indicated that "sleep disorders are well known to produce mental problems over time, such as depression and anxiety." The representative requested that the agency of original jurisdiction (AOJ) develop the matter of service connection for a psychiatric disability as secondary to OSA. As this claim has not been adjudicated by the AOJ, the Board does not have jurisdiction in the matter. The matter is referred to the RO for any appropriate action. FINDING OF FACT It is reasonably shown that the Veteran's service-connected residuals of nasal septoplasty were an etiological factor in his development of OSA. CONCLUSION OF LAW Service connection for OSA is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case; however, because the benefit sought is being granted, there is no reason to belabor the impact of the VCAA in this matter (as any notice or duty to assist omission is harmless). Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he developed sleep apnea secondary to his service-connected nasal obstruction. The Veteran's service treatment records (STRs) are silent for complaints, diagnosis, or treatment for OSA. They do show that the Veteran was treated for a deviated nasal septum, and underwent two septoplasty procedures. Residuals of a nasal septoplasty are service connected. Postservice private treatment records show that the Veteran was initially seen at the Sleep Medicine and Research Center in September 2007 for complaints of snoring for the last 20 years, daytime tiredness and sleepiness for the last two years. The impression was rule out OSA; polysomnography (sleep study) was recommended. Polysomnography was completed in October 2007; the impression was moderate OSA. A CPAP machine was prescribed. On May 2008 VA examination, the Veteran reported undergoing a nasal septoplasty in service and then two to four weeks later, a revision septoplasty. He stated that the surgery may have worsened his snoring and perhaps his breathing. The physical examination revealed significant deviation of the nasal septum to the left side with greater than 50 percent obstruction on the left side of the nose. The remainder of the nose and throat examination was all within normal limits. The examiner noted that the Veteran had OSA diagnosed in November 2007, but probably had OSA for years (given his history of daytime sluggishness and snoring), and that he has been treated with CPAP since that time. In July 2008, the VA examiner provided an addendum to his previous examination. He stated that he previously did not have the Veteran's claims folder and medical records to review, but that he later received them and reviewed them. The examiner opined that the Veteran has OSA, but that he did not see any evidence that his OSA symptoms were documented prior to November 2007, and that it would be speculation to state whether he had OSA prior to that time. The Veteran's wife submitted a statement explaining that her husband's snoring and sleeping problems intensified after he underwent surgeries for nasal obstruction in service. The Veteran also submitted an article from Stanford University regarding OSA, which stated that this syndrome is characterized by repetitive episodes of upper airway obstruction and that a site of obstruction can be the nasal passages. In August 2010, the Veteran submitted a private opinion from an ear, nose, and throat (ENT) physician. After reviewing the Veteran's history and examining him, the physician opined that the Veteran suffers from significant OSA syndrome, which is "far more likely than not that it is exacerbated by his persistent nasal airway obstruction, but not entirely caused by it." He further noted that the treatment for OSA should be initiated with continuous positive airway pressure via nasal pillows, but that his nasal airway obstruction precludes this treatment. Therefore, the physician concluded that the Veteran's service-connected nasal airway obstruction "is as likely as not to be a source of his current medical morbidity." Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, 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 "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the claimed disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is not in dispute that the Veteran has OSA; such disability is diagnosed, and has been confirmed by a sleep study. Although there is medical opinion evidence suggesting that OSA existed for years prior to its diagnosis in 2007, there is no objective evidence that it was manifested in service or soon thereafter, and service connection for OSA on the basis that it became manifest in service, and has persisted since, is not warranted. As is noted above, the Veteran's theory of entitlement to service connection for OSA is primarily one of secondary service connection. The Veteran's residuals of nasal septoplasty are service-connected. Therefore, what remains necessary to establish secondary service connection for OSA is that it was caused or aggravated by the nasal septoplasty residuals. In July 2010 a Board-certified ENT surgeon opined that the Veteran's OSA more likely than not was exacerbated by his service-connected nasal airway obstruction. The opinion is supported by an explanation of rationale and citation to factual data. The Board finds no reason to reject it; there is no medical opinion in the record to the contrary. The Board notes the July 2008 VA examiner's opinion that he did not see any evidence that the Veteran's OSA symptoms were documented prior to November 2007, and that it would be speculation to state whether he had OSA prior to that time. That opinion (by a provider who is also a Board-certified otolaryngologist) does not address the theory of entitlement presented. Accordingly, as a probative nexus opinion shows OSA is related to the Veteran's service-connected nasal obstruction, the final element of secondary service connection is met. Resolving any remaining reasonable doubt in the Veteran's favor as required (see 38 C.F.R. § 3.102), the Board finds that Service connection for OSA is warranted. ORDER Service connection for OSA as secondary to service-connected residuals of nasal septoplasty, is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs