Citation Nr: 1332664	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  07-32 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for sleep apnea.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Veteran served on active duty from August 1980 to March 1987.  

This appeal to the Board of Veterans' Appeals (Board) arises from an October 2006 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans' Affairs (VA).

In June 2008 a Board hearing was held at the RO before the undersigned Veteran's Law Judge; a transcript of the hearing is of record.   In March 2009 and June 2010, the case was remanded for further development.  


FINDING OF FACT

The evidence is at least in equipoise as to whether the Veteran's taking prednisone for her service-connected asthma caused her to gain weight, thus causing her sleep apnea.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for sleep apnea as secondary to service-connected asthma are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Given the favorable disposition of the claim for service connection for sleep apnea, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished.


II.  Analysis

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.   Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a).  A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102.

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 


Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran has alleged that her sleep apnea has either been caused or aggravated by weight gain resulting from taking oral prednisone for her service-connected asthma.  The Veteran clearly has sleep apnea, as evidenced by private medical records showing a diagnosis of the condition as early as 1998, with continued treatment thereafter.  She has also been shown to suffer from obesity, which, as pointed out in April 2009 and December 2011 VA medical opinions, is a major risk factor for sleep apnea.  Additionally, service connection for asthma was established soon after service and the Veteran has a long history of having taken prednisone for the condition.  Additionally, weight gain can be a side effect from taking prednisone, particularly in oral form (See e.g. Prednisone and Other Corticosteroids at http://www.mayoclinic.com/health/steroids/HQ01431), and a review of the Veteran's medical records over the years show a correlation between her prednisone use and significant increases in her weight.  

The medical opinion evidence of record does not show a definitive causal link between the Veteran's prednisone use and her sleep apnea.  However, a  December 2011 VA opinion tends to show that prednisone use was a factor in the Veteran's obesity, indicating that it was not clear that such use was the "main cause" for the Veteran's weight gain (thus tending to indicate that it was a secondary or contributing cause).   

Taken together, the Veteran's clearly observable pattern of weight gain over the years while taking prednisone; the VA opinion's clear emphasis on obesity as a major risk factor for sleep apnea; the VA opinion's indication that prednisone had some effect on the obesity; and the lack of any medical opinion tending to indicate that prednisone use had no effect on the Veteran's obesity and sleep apnea, puts the evidence at least in equipoise as to whether sleep apnea was caused by such use.  Gilbert, 1 Vet. App. 49 (1990).  

Accordingly, resolving reasonable doubt in the Veteran's favor, service connection for sleep apnea, secondary to prednisone use for service-connected asthma, is warranted.  38 C.F.R. § 3.102.   


ORDER

Service connection for sleep apnea is granted.



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs