Citation Nr: 1534763 Decision Date: 08/14/15 Archive Date: 08/20/15 DOCKET NO. 12-11 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to hypertensive heart disease REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to April 1961 and from July 1961 to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision by the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. FINDINGS OF FACT Resolving all doubt in the Veteran's favor, the most probative evidence of record demonstrates that sleep apnea was caused or aggravated by hypertensive heart disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the issue of service connection for sleep apnea is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims is not necessary. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, 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). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Facts and Analysis The Veteran is currently service connected for hypertensive heart disease with systolic/diastolic dysfunction and early congestive heart failure, which was previously rated as coronary artery disease (heart disability). The Veteran also is separately service connected for hypertension. The Veteran has also been diagnosed with sleep apnea. He now seeks service connection for sleep apnea contending it is caused or aggravated by the heart disability. The Veteran testified that he is not asserting his sleep apnea is directly caused or related to service and there is no evidence of record to support direct service connection under 38 C.F.R. § 3.303(d). The Veteran's sleep apnea was diagnosed in an October 2009 polysomnogram, which was a sleep study. The diagnosis was obstructive sleep apnea syndrome with mild cyclic hypoxemia, which was worse when the Veteran was in a supine position and improved with CPAP (continuous positive airway pressure). The physician interpreting the results, however, noted more central events with CPAP/bilevel PAP and Cheyne-Stokes/Cheyne-Stokes Variant Breathing was identified in many epochs. Also noted, the estimated circulation time (apnea end to oxygen nadir) was long, 20 seconds in one instance, which was consistent with congestive heart failure. As a result, the physician also included as a diagnosis probable Cheyne-Stokes and Cheyne-Stokes Variant Breathing, probably secondary to congestive heart failure. The Veteran was provided a VA examination in February 2010. The examiner noted the Veteran had poorly controlled hypertension, hypertensive heart disease, systolic and diastolic dysfunction, and congestive heart failure. The examiner also stated it was unquestionable that he had obstructive sleep apnea. He stated that hypertension is one of several risk factors for sleep apnea and hypertension per se does not cause sleep apnea. In addition, congestive heart failure and heart disease do not cause sleep apnea. The examiner also stated that medical literature has not resulted in a definite study has shown sleep apnea is caused by either hypertension or heart disease. The examiner therefore concluded that the Veteran's sleep apnea is less likely than not caused by or the result of or related to the hypertensive heart disease with a systolic or diastolic dysfunction and the early congestive heart failure. The Veteran has submitted several articles from the internet that note central sleep apnea is the result of heart disease and congestive heart failure. Furthermore, Cheyne-Stokes respiration is a type or form of central sleep apnea. In April 2013, the Veteran's treating physicians noted the 2009 polysomnogram study showed, in addition to an element of central sleep apnea, Cheyne-Stokes respirations were found. In December 2013, the Veteran was diagnosed with sleep apnea, obstructive and central in nature. An association between central sleep apnea and heart disease was also noted. In September 2014, the Veteran's sleep apnea, both obstructive and central, was reasonably controlled by BiPAP positive pressure therapy. In February 2015, the Veteran had a diagnosis of compensated congestive heart failure. The etiology was unclear. In this instance, there is no dispute the Veteran has sleep apnea. Based upon the medical evidence, the Board finds the Veteran's sleep apnea has elements of obstructive sleep apnea and elements of central sleep apnea, or in other words, a mixed sleep apnea disability. There is also no dispute about the Veteran's heart disability as it is service connected. As to the third Wallin element, a nexus between the claimed sleep apnea disability and the service connected heart disability, the Board notes that the VA examiner has concluded that obstructive sleep apnea is less likely than not is caused by the heart disability. The opinion does not discuss the fact that the Veteran's sleep apnea is in part central sleep apnea. Further, the expert stated the hypertension and the heart disease were risk factors in sleep apnea and no definitive study has shown sleep apnea is caused by either hypertension or heart disease. The evidence need only be in equipoise, not that it needs to be clearly determined whether a disability was caused by another disability. 38 C.F.R. § 3.303(a). See also Wise v. Shinseki, 26 Vet. App. 517 (2014) (medical literature discussing a link between a disability and another disability or service did not have to be established to the point of being generally accepted in the scientific community; Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting that the extent to which a theory is accepted in the scientific community is a factor that the Board may use in evaluating scientific evidence but in a merits adjudication, the evidence need only reach equipoise). On the other hand, the VA physicians have concluded that central sleep apnea plays a part in the Veteran's sleep apnea and it has resulted from his heart disability. The 2009 polysomnogram used the term "probably," which suggests the physician concluded it was more likely than not or greater than 50 percent possibility that the Veteran had Cheyne-Stokes respirations. On the other hand, it is not clear if "probable" was used in the sense of "possible,"which is insufficient to establish a nexus. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (The term "possibility" also implies that it "may not be possible" and it is too speculative to establish a nexus.) Subsequent notes by physicians clearly establish that the Veteran had Cheyne-Stokes respirations, make the diagnosis of central sleep apnea, and a link of causation to the Veteran's heart disability. Thus, there is competent medical evidence on the nexus question in favor of the claim and against the claim. Here, as already noted, the significant facts are not disputed, that is, evidence of a diagnosis of sleep apnea, which the Board has found to be a combination of both obstructive sleep apnea and chronic sleep apnea. The Veteran also has had a long standing history of a heart disability and hypertension. The same set of facts, however, has resulted in contradictory conclusions. Accordingly, the Board finds that there is an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim of service connection. Given both positive and negative nexus opinions of seemingly equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's current sleep apnea disability is related to, caused by, or aggravated by the Veteran's heart disability. The benefit of the doubt rule applies and is resolved in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). As there is a reasonable doubt, which is resolved in the Veteran's favor, 38 C.F.R. § 3.102, all three elements of service connection are satisfied, and the benefit sought on appeal is granted. Resolving doubt in favor of the Veteran, service connection for sleep apnea is warranted. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs