Citation Nr: 1331114 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-15 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected allergic rhinosinusitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to June 1973. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for sleep apnea. This claim was previously before the Board in March 2013, at which time it was remanded for further development. FINDING OF FACT Affording the Veteran the benefit of the doubt, his sleep apnea is related to his service-connected rhinosinusitis. CONCLUSION OF LAW The criteria for establishing service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for a sleep apnea disability. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran contends that his service-connected rhinosinusitis condition and resulting post-nasal drip interfere with his nocturnal breathing difficulties, and thereby, aggravate his sleep apnea condition. Applicable Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See 38 C.F.R. § 3.303; also see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptomatology after service is required for service connection. See 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Factual Background and Analysis Initially, the Board notes that the Veteran has limited his claim of service connection for sleep apnea to the theory that it was caused or aggravated by his service connected rhinosinusitis condition (i.e., secondary service connection). Therefore, the Board will likewise limit its adjudications. In any event, given the disposition of the claim, consideration of direct service connection is not necessary. Service connection is in effect for allergic rhinosinusitis since February 2002, and the post-service record shows the Veteran's complaints and treatment for obstructive sleep apnea starting in approximately 2008. Thus, the Board finds that the Veteran has a current disability. See Allen, supra; also see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."). As to a relationship between the sleep apnea and the Veteran's service connected allergic rhinosinusitis with post-nasal drip, in a January 2009 private treatment note, Dr. J.R. stated that "the respiratory allergic and inflammatory problems are aggravating his nighttime congestion, sinus fullness, and post-nasal drip," and that "these all contribute to his nocturnal breathing difficulties." Likewise, in a February 2010 private treatment note, Dr. M.D. stated that the Veteran's "current long-standing history of rhinosinusitis is a likely significant contributor to upper airway obstruction directly impacting nighttime symptoms of OSA," and that "chronic post-nasal drainage is also seemingly contributory to nighttime arousal and awakening." In a June 2010 private treatment note, Dr. M.D. noted that the Veteran "has post-nasal drip that certainly interferes with his sleep due to the drainage that awakens him frequently through the night." Dr. M.D. also confirmed that the Veteran's post-nasal drip was secondary to his allergic rhinitis. Lastly, in April 2013, Dr. M.P., a private physician, stated that the Veteran suffers from post-nasal drip at night that awakens him and causes choking episodes. Dr. M.P. further stated that the Veteran's "nighttime awakening are absolutely caused by his chronic rhinosinusitis," and that this is "definitely making his sleep apnea worse and leading to significant daytime somnolence." In addition to the foregoing private opinions, the record contains an August 2009 VA opinion which appears to support a theory of aggravation. Indeed, while the August 2009 VA examiner stated that the sleep apnea was not caused by the rhinosinusitis, he did reiterate Dr. J.R.'s January 2009 opinion that "his upper respiratory, allergic and inflammatory problems are AGGRAVATING (my emphasis) his nighttime congestion, sinus fullness, and post-nasal drip. These all contribute to his nocturnal breathing difficulties." Notably, the VA examiner did not contradict the aggravation theory/finding, but rather emphasized it. Therefore, the Board interprets the August 2009 VA opinion as positive evidence in support of the Veteran's claim. The Board finds these opinions to be highly probative as to the issue of nexus (i.e., the relationship between sleep apnea and the service-connected rhinosinusitis). Specifically, with respect to the private opinions provided by Drs. J.R., M.D., and M.P., such opinions were rendered by the Veteran's longtime physicians (some of whom were specialists in their medical field) who were likely intimately familiar with the Veteran's allergy/pulmonary history, and thus, highly qualified to evaluate the Veteran's current sleep apnea and rhinosinusitis conditions. All of the private opinions were likewise supported by rationale. Additionally, with respect to the August 2009 VA opinion, the examiner thoroughly reviewed the Veteran's claims file and his medical history and implicitly agreed with the positive opinion provided by Dr. J.R. on the issue of aggravation. For these reasons, the Board finds the opinions provided by Drs. J.R., M.D., and M.P., as well as the August 2009 VA examiner, to be the most persuasive and probative evidence in this case. In so finding, the Board acknowledges that a May 2013 VA examiner opined that the Veteran's sleep apnea was not caused by the service-connected rhinosinusitis; the examiner also opined that when his allergic symptoms were severe, the rhinosinusitis could "transiently" aggravate his sleeping. However, the examiner was unable to state that it aggravated his sleep apnea "in any fashion other than it would affect his sleep without sleep apnea." The VA examiner then stated that it would be "impossible" to accurately determine the baseline severity of the Veteran's sleep apnea compared to the severity after aggravation (if aggravation were present, which he opined it was not). As part of his rationale, the VA examiner attempted to discredit Dr. M.P.'s (April 2013) positive aggravation opinion, by stating his findings were inconsistent. Specifically, the VA examiner wrote that "the statements by the allergist are conflicting in that he states that the symptoms are unchanged (which would imply that they are consistent with previous visits) and then states that they are causing awakenings...For the most part, the history from the allergy practice does not indicate any sleep related problems from the allergic rhinitis until April 2013. In fact, the notes indicate excellent control of the allergic symptoms until April 2013. Until April 2013, there was minimal indication in the medical evidence/reports from either the VA PCP, Allergy Specialist, or Sleep Specialist indicating any significant aggravation of sleep by the allergies." However, as noted above, at least two other physicians (Drs. J.R. and M.D.) had previously reported that the rhinosinusitis and related post-nasal drip directly impacted his sleep apnea symptoms. The Veteran's representative argues that this factual inaccuracy renders the May 2013 opinion flawed; the Board agrees, and the probative value of such opinion is thus diminished. Thus, while the May 2013 VA examiner did provide a somewhat probative (negative) opinion that the Veteran's sleep apnea was not caused or aggravated by the service-connected rhinosinusitis, the Board finds that the positive probative evidence of record (i.e., opinions of Drs. J.R., M.D., and M.P., and the August 2009 VA examiner), outweighs the Veteran's one negative (less) probative opinion of record (i.e., the May 2012 VA examiner's opinion). In summary, the most competent and probative evidence shows (1) the Veteran is service connected for allergic rhinosinusitis (which causes secondary post-nasal drip), (2) he has a diagnosis of obstructive sleep, and (3) that his sleep apnea was aggravated by the service-connected rhinosinusitis and related post-nasal drip. See 38 C.F.R. § 3.310; Allen, supra. Therefore, based on the totality of the lay and medical evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a grant of secondary service connection for sleep apnea. See 38 U.S.C.A. § 5107; Gilbert, supra. The Board does note that the May 2013 VA examiner essentially found that a baseline level of severity could not be established in accordance with 38 C.F.R. § 3.310. Nevertheless, the Board finds that the standard for service connection has been met in this case. ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs