Citation Nr: 1427494 Decision Date: 06/17/14 Archive Date: 06/26/14 DOCKET NO. 09-29 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for sleep apnea as secondary to service-connected disabilities. ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on a period of active duty for training from October 1993 to July 1994, and on active duty from December 2003 to February 2005. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The appeal has been before the Board in July 2012, April 2013, August 2013, and November 2013, at which times the issue of service connection for sleep apnea was remanded for medical opinions addressing the etiology of the disability. As noted in the previous remands, in a June 2010 statement, the appellant specifically limited his appeal of the denial of service connection for sleep apnea to the question of whether his sleep apnea is secondary to his service-connected disabilities, to particularly include his medication for those disabilities. The Veteran's physical paper file has been converted to an electronic file in the Veterans Benefits Management System (VBMS). There remain additional documents in the Virtual VA system not included in the VBMS file. Both the VBMS and Virtual VA files have been considered in this adjudication. FINDING OF FACT Providing the Veteran with all benefit of the doubt, sleep apnea is aggravated by medications taken for major depressive disorder. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, sleep apnea is aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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 or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection is also warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (providing that additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a)). In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). As noted above, the Veteran, in a June 2010 statement, specifically limited his claim to service connection for sleep apnea as secondary to the medications he takes for his service-connected conditions. He was first diagnosed with obstructive sleep apnea (OSA) in April 2008, after an onset of symptomatology in 2007. The Veteran is service-connected for major depressive disorder. The record reflects that the Veteran had at times been prescribed benzodiazepines for his anxiety (which is an aspect of his service-connected major depressive disorder, as explained in a March 2009 rating decision), which may be contraindicated for sleep apnea. The record indicates that at least as early as 2006, prior to his sleep apnea symptomatology, the Veteran was taking prescription cyclobenzaprine for anxiety. Per his May 2009 treatment notes (found in the Virtual VA record), despite being instructed to avoid benzodiazepines due to his sleep apnea, it was apparent that he had been continued on a prescription of diazepam, and was later switched to clonazepam. He was also prescribed certain psychotropics, which the treatment notes indicate could impact his sleep apnea. The Board remanded this appeal on four occasions attempting to obtain a probative, fully-supported medical etiology opinion. Most recently, in March 2014, a VA physician acknowledged that "any benzodiazepine can aggravate OSA, but opined, in pertinent part, that "the clinical file provided no medical based, clinical evidence to support a 'worsening' of OSA while on or following Diazepam and Clonazepam use." Supporting this opinion, she stated that "current medical literature was silent for the use of benzodiazepine as an etiological factor for the primary cause of OSA." She also noted the following: Clearly, the Veteran's physician determined the use of Benzodiazepines after careful evaluation of the Veterans medical needs, past medical history, severity of his depression and knowledge of each medical prescribed. Therefore, the physician's "best clinical judgment" was reasonable and appropriate treatment for this Veteran's mental health condition despite the presen[ce] of mild OSA. Thus, given that the Veteran was under the care of his physician for his mental health condition, the appropriate measures, dose and/or use of Diazepam were LESS LIKELY THAN NOT the etiology of, cause of or aggravating factor for his OSA. Although the March 2014 opinion was negative regarding any potential etiology for a nexus between OSA and the benzodiazepines the Veteran used for his psychiatric condition, the Board finds that the opinion actually provides a basis for granting the claim on the basis of aggravation, under the benefit of the doubt standard. Gilbert, 1 Vet. App. at 54. The examiner acknowledged that sleep apnea may be aggravated by these medications. While she stated that there was no evidence to support a relationship between the medication and the diagnosis, the examiner did not to discuss the timeframe regarding the cyclobenzaprine (a benzodiazepine) treatment in regard to the onset of symptomatology, and the OSA diagnosis. As such, the rationale for the negative etiology opinion is partly undermined. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). That fact, however, does not undermine her acknowledgement that benzodiazepines may aggravate OSA. The Board further acknowledges the examiner's statement that the medical literature is bereft of findings relating benzodiazepines as the cause of OSA. The Board accepts medical fact, as the examiner's statement sufficiently supported. Id. The final basis for her opinion is also, by VA standards, insufficient to make the opinion legally probative. In essence, she found that, because the Veteran was being treated by physicians who used their "best clinical judgment" to prescribe benzodiazepines, despite the OSA diagnosis, then it was less likely than not that OSA was caused or aggravated by the medications. While the Board has no reason to doubt the treatment provided by the Veteran's physicians, it is well-recognized, both medically and legally, that side effects may result, even if undesired or unintended, derivative of the valid use of prescription medication. The question before the Board is not concerning the soundness of a treating physician's medical judgment, but one of legal fact - whether the evidence of record demonstrates that it is at least as likely as not that the obstructive sleep apnea was caused or aggravated by the medications prescribed for the Veteran's service-connected disabilities. Although the opinion of record does not provide the exact nexus between the benzodiazepine use and the Veteran's sleep apnea, considering the benefit of the doubt standard, as well as principles of judicial economy (the Board having remanded this case on four prior occasions), the Board finds that the proper remedy is to grant the appeal. Service connection for obstructive sleep apnea on the basis of aggravation under the parameters of 38 C.F.R. § 3.310 is warranted. ORDER Entitlement to service connection for sleep apnea, as secondary to service-connected major depressive disorder, is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs