Citation Nr: 1520878 Decision Date: 05/15/15 Archive Date: 05/26/15 DOCKET NO. 11-13 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected postoperative deviated septum. 2. Entitlement to service connection for hypertension, to include as secondary to sleep apnea. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from August 1977 to July 1980 and from November 1983 to September 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs Regional Office (RO). In March 2015, the Veteran appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. FINDINGS OF FACT 1. Sleep apnea is caused by or related to the Veteran's service-connected postoperative deviated septum. 2. The Veteran's hypertension was caused by or is aggravated by sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2014). 2. The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2013). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also service-connected. 38 C.F.R. § 3.310(a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he has sleep apnea as a result of a deviated septum, for which he has been granted service connection. Additionally, the Veteran has asserted that hypertension is secondary to or aggravated his sleep apnea. The Board notes that the medical evidence of record establishes that the Veteran has a current diagnosis of both sleep apnea and hypertension. In support of his claims, the Veteran has submitted medical opinions from two private doctors. In a June 2008 letter, Dr. M.R. reported that he examined and interviewed the Veteran and reviewed his medical records and some of his service personnel records. After examination, Dr. M.R. opined that the Veteran's sleep apnea was secondary to a service-connected deviated septum. However, Dr. M.R. did not provide a detailed rationale for that opinion. In a July 2009 letter, Dr. J.S. stated that he reviewed the Veteran's medical records, including sleep studies conducted in 2001 and 2008, and some of his service personnel records. After examination and interview with the Veteran, Dr. J.S. opined that the Veteran's sleep apnea was as likely as not secondary to the service-connected deviated septum and further, that it was as likely as not that sleep apnea led to his diagnosis of hypertension. Dr. J.S. provided a very detailed and thorough explanation of rationale for his opinions, but the Board finds it most notable that Dr. J.S. initially noted that an anatomic risk factor for sleep apnea includes deviated septum according to research. Dr. J.S. thoroughly examined the Veteran's medical history and noted that he had a history of inflamed nasal turbinate membranes caused by exposure to jet fumes, and that, combined with the deviated septum, was a classic direct mechanical effect that lead to sleep apnea. Dr. J.S. also explained that recent epidemiologic data indicated that sleep apnea increased blood pressure and that, over time, could cause functional and structural cardiovascular changes predisposing to hypertension. The Board finds that the July 2009 private opinion from Dr. J.S. is adequate because Dr. J.S. thoroughly reviewed the Veteran's medical records, discussed the relevant evidence, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also of record is a November 2008 VA examination report, which documents the examiner's opinion that the Veteran's sleep apnea and hypertension were not related to the Veteran's active service. However, the Board finds that examination report incomplete as no rationale was offered to support the opinions. Specifically, the examiner simply listed risk factors for sleep apnea to support the finding that the Veteran's sleep apnea was not caused by or related to his service-connected deviated septum. The examiner did not specifically address why, in this case, the Veteran's sleep apnea was not related to his deviated septum. As that examination report has been found inadequate, it cannot be used for rating purposes. In any event, the Board finds it less persuasive than the more detailed private opinion. In sum, the Veteran has current diagnoses of sleep apnea and hypertension, and is currently service-connected for postoperative deviated septum. In the July 2009 letter, Dr. J.S. competently opined that the Veteran's sleep apnea was secondary to his deviated septum and that hypertension was secondary to sleep apnea. The November 2008 VA examination report and opinion are inadequate as the rationale did not address the facts of the Veteran's specific case. Accordingly, the Board finds that the preponderance of the evidence supports the claim and entitlement service connection for sleep apnea, secondary to a service-connected postoperative deviated septum; and entitlement to service connection for hypertension, secondary to sleep apnea, are warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sleep apnea, secondary to a postoperative deviated septum, is granted. Entitlement to service connection for hypertension, secondary to sleep apnea, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs