Citation Nr: 1329930 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-17 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Entitlement to service connection for a disorder manifested by chronic coughing and difficulty breathing (other than chronic cough with rhinitis), to include obstructive sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to July 1974 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2006 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied service connection for a coughing and breathing condition claimed as secondary to Agent Orange herbicide exposure and granted service connection for chronic cough with rhinitis, assigning a noncompensable evaluation effective August 18, 2005. In December 2009, the Veteran presented sworn testimony during a Travel Board hearing in Atlanta, Georgia, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The matter was most recently Remanded in February 2013 to secure additional medical evidence. Additionally, the Board obtained an expert opinion from the Veterans Health Administration (VHA) in September 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's currently diagnosed obstructive sleep apnea is the result of his service-connected chronic cough with rhinitis. 2. The Veteran's currently diagnosed reactive airway disease/asthma is the result of his service-connected chronic cough with rhinitis. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was incurred in or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. Reactive airway disease/asthma was incurred in or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While 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 Veteran 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 claim. The Veteran 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 Veteran). 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 Veteran. 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, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) The claims for service connection for obstructive sleep apnea and reactive airway disease/asthma have been granted, as discussed below. Any error related to the VCAA is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran alleges that he currently suffers from a disorder or disorders manifested by chronic coughing and difficulty breathing, other than his already service-connected chronic cough with rhinitis and to include sleep apnea, that is/are related to his service-connected rhinitis. He believes that service connection is warranted on a secondary basis for sleep apnea and any other identified respiratory disorder. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). 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. See 39 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (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. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The medical evidence reveals that the Veteran has been diagnosed with reactive airway disease/asthma and sleep apnea. On review of the record, the September 2013 VHA physician diagnosed the Veteran with reactive airway disease or asthma. A March 2005 private sleep study diagnosed obstructive sleep apnea. As such, the first element of Wallin is met for reactive airway disease/asthma and sleep apnea. The Veteran is service connected for chronic cough with rhinitis. The second element of Wallin is also met. With respect to the remaining element (a medical nexus), the VHA physician essentially determined that the Veteran's reactive airway disease/asthma was proximately related to his allergic rhinitis. Reference was to medical literature that supported this premise. As for the Veteran's sleep apnea, the VHA physician noted that sleep apnea results from partial or complete upper airway collapse during sleep - a condition that can be aggravated by nasal congestion from allergic rhinitis. He, therefore, concluded that the Veteran's sleep apnea was at least aggravated by his service-connected rhinitis. The VHA physician also referenced medical literature stating that nasal congestion is a risk factor for sleep apnea. Although he only concluded that the nasal congestion was one of many possible risk factors for the Veteran's development of sleep apnea, he did state that it did contribute. The Board is satisfied that the Veteran's sleep apnea cannot be clearly dissociated from his service-connected allergic rhinitis. In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition. Although Mittleider involved a claim for an increased rating rather than a claim for service connection, the Board finds that it applies here because, as there, the medical professional could not separate the effects of the service-connected allergic rhinitis and any non-service-connected risk factor on the Veteran's sleep apnea. Thus, affording the Veteran the full benefit of the doubt, the Board finds that the VHA opinion also supports a finding of secondary service connection not only service connection on the basis of secondary aggravation. The Board notes that the Veteran has been afforded multiple other VA examinations and opinions on the etiology of his sleep apnea and reactive airway disease/asthma. However, the Board has not found them to be sufficiently probative negative evidence to outweigh the positive VHA opinion - as evidenced by the Board's decision to seek a VHA opinion rather than decide the case on the examinations/opinions of record. As the claims are being granted, the Board deems any further conversation of any contradictory medical evidence irrelevant. In light of the September 2013 positive VHA opinion linking the Veteran's service-connected chronic cough with rhinitis with his sleep apnea and reactive airway disease/asthma and the lack of sufficiently probative medical evidence to contradict this, the Board finds that the medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current reactive airway disease/asthma and sleep apnea are related to his service-connected chronic cough with rhinitis. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claims for service connection for reactive airway disease/asthma and sleep apnea are granted on a secondary basis. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for reactive airway disease/asthma is granted on a secondary basis. Entitlement to service connection for obstructive sleep apnea is granted on a secondary basis. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs