Citation Nr: 1426481 Decision Date: 06/11/14 Archive Date: 06/16/14 DOCKET NO. 08-28 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for sleep apnea, including as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1990 to July 1999, and from October 2001 to April 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a March 2009 rating decision, the VA RO in Denver, Colorado (the Veteran relocated during the course of this appeal) continued the denial of service connection for sleep apnea. In December 2011, the Board, in pertinent part, remanded the issue of service connection for sleep apnea for additional development. The case has been returned to the Board for appellate consideration and is ready for disposition. As discussed in detail below, the Board is granting service connection for sleep apnea secondary to the service-connected lumbar spine degenerative disc disease, status post fusion L5-S1 (hereinafter "back disability"). As such, any discussion with regard to compliance with the December 2011 remand instructions is rendered moot. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's currently diagnosed sleep apnea is causally related to the service-connected back disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea, as secondary to service-connected back disability, have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Board is granting service connection for sleep apnea, which constitutes a full grant of the benefits sough on appeal; therefore, no further discussion regarding VCCA notice or assistance duties is required. Service Connection for Sleep Apnea Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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). In this case, the Veteran has been diagnosed with sleep apnea, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. As adjudicated below, the Board is granting service connection for sleep apnea based on secondary service connection under 38 C.F.R. § 3.310; therefore, the additional service connection theory of direct service connection pursuant to the same benefit is rendered moot, and there remain no questions of law or fact as to the fully granted service connection claim. For this reason, the theory of direct service connection will not be further discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides questions of law or fact). The contention liberally construed for the Veteran is that his current sleep apnea is associated with his service-connected disabilities. In a May 2007 claim, the Veteran contended that, prior to his second period of active duty, he was having severe problems with sleep and was diagnosed with obstructive sleep apnea. Throughout the course of this appeal, the Veteran has contended that his sleep apnea is directly related to his service-connected nasal fracture and in-service deviated nasal septum. The evidence of record demonstrates that the Veteran has currently diagnosed sleep apnea. A May 2001 VA treatment record notes, based on the results of a sleep study, a diagnosis of obstructive sleep apnea. A February 2012 private treatment record notes, based on the results of a sleep study, complex sleep apnea with a component of central sleep apnea. A February 2012 VA examination report notes that the Veteran was diagnosed with obstructive sleep apnea in 2001 and diagnosed with mixed (components of both obstructive and central sleep apnea) in 2012. The VA examiner noted that mixed sleep apnea is also known as "complex" sleep apnea. The VA examiner opined that the Veteran's central sleep apnea is at least as likely as not caused by the sedatives and pain medications he takes for back pain. The VA examiner noted that the Veteran was taking multiple prescription pain medications prior to the February 2012 sleep study. The VA examiner noted that central sleep apnea is not caused by nasal obstruction. The VA examiner further opined that the pain medications the Veteran takes for his back worsen his sleep apnea by contributing to central sleep apnea. The VA examiner estimated that 10 percent of the Veteran's sleep disorder is due to central sleep apnea caused by pain medication use. As noted above, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a); see Allen, 7 Vet. App. at 448. The evidence of record reflects currently diagnosed sleep apnea. The probative medical evidence of record demonstrates that the sleep apnea is permanently worsened by the pain medications the Veteran takes for his service-connected back disability; therefore, resolving reasonable doubt in favor of the Veteran, service connection for sleep apnea, as secondary to the service-connected back disability, is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The grant of secondary service connection renders moot other theories of service connection. ORDER Service connection for sleep apnea, as secondary to the lumbar spine degenerative disc disease, status post fusion L5-S, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs