Citation Nr: 1454144 Decision Date: 12/09/14 Archive Date: 12/16/14 DOCKET NO. 13-31 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for sleep apnea, secondary to service-connected gastroesophageal reflux disease, with history of esophagitis and hematemesis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2014). FINDING OF FACT The Veteran's current obstructive sleep apnea is aggravated by his service-connected gastroesophageal reflux disease (GERD), with history of esophagitis and hematemesis. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, secondary to service-connected GERD, with history of esophagitis and hematemesis, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue of entitlement to service connection for obstructive sleep apnea, secondary to service-connected GERD, with history of esophagitis and hematemesis. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). This is so because the Board is taking action favorable to the Veteran by granting the claim. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In April 2010, the Veteran filed his present claim seeking service connection for sleep apnea. He specifically alleged that this disorder was caused or aggravated by his service-connected GERD, with history of esophagitis and hematemesis. The Veteran's service-connected GERD, with history of esophagitis and hematemesis is currently evaluated as 30 percent disabling. This disorder is shown to have developed during the Veteran's military service. Post service treatment records reflect a diagnosis of severe obstructive sleep apnea by a sleep study test performed in September 2009. Supporting the Veteran's claim are May 2010 and December 2010 opinion letters from VA physician, M.S.C., M.D. In the letters, Dr. C. opined that the Veteran's obstructive sleep apnea was aggravated or exacerbated by his service-connected GERD. In support of this opinion, Dr. C. submitted medical literature indicating that GERD was a symptom associated with obstructive sleep apnea, and that GERD can mimic obstructive sleep apnea by producing a choking sensation and dyspnea. In his December 2010 letter, Dr. C. noted that the Veteran's GERD symptoms are so severe at night that they cause the Veteran to remove his continuous positive airway pressure machine (CPAP) mask, which he cannot sleep without, and that this creates a situation in which he gets less rest and requires medication. In contrast to this opinion, is a May 2010 medical opinion from VA examiner D.R., FNP-C, which is also signed by L.A., M.D., along with a September 2010 supplemental medical opinion from D.R., FNP-C. These opinions conclude that the Veteran's obstructive sleep apnea has not been aggravated by his service-connected GERD. In support of this opinion, the physicians cite to the same medical literature submitted by Dr. C., which indicates that the exact nature of the relationship by obstructive sleep apnea and GERD is uncertain. After reviewing the evidence of record, the Board finds that the evidence supports the Veteran's claim of entitlement to service connection for obstructive sleep apnea, secondary to his service-connected GERD, with history of esophagitis and hematemesis. The evidence shows a current diagnosis of "very severe obstructive sleep apnea." The evidence also indicates that the Veteran's service-connected GERD impacts on his ability to treat his sleep apnea with a CPAP machine. Finally, the Board finds the medical opinions of record addressing the issue of aggravation stand in equipoise in terms of their probative value. Resolving all doubt in favor of the Veteran, service connection for obstructive sleep apnea, secondary to his service connected gastroesophageal reflux disease with history of esophagitis and hematemesis, is warranted. ORDER Service connection for obstructive sleep apnea, secondary to service-connected GERD, with history of esophagitis and hematemesis, is granted. _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs