Citation Nr: 1618940	
Decision Date: 05/11/16    Archive Date: 05/19/16

DOCKET NO.  12-17 257	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected allergic rhinitis.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Jeremy J. Olsen, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from November 1978 to November 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  Jurisdiction over the Veteran's claim has since been transferred to the RO in San Diego, California.   

The Veteran and his wife testified before the undersigned at a March 2016 video conference hearing.  A transcript of the hearing has been associated with the claims file.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems.


FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, the Veteran's current obstructive sleep apnea is etiologically related to the Veteran's service-connected allergic rhinitis.


CONCLUSION OF LAW

The criteria to establish entitlement to service connection for obstructive sleep apnea have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision to grant service connection for obstructive sleep apnea is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.

Service connection may be established for any disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  See 38 U.S.C.A.  
§ 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to a disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

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 order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Here, the Board notes that the first and second elements of a secondary service connection claim are established.  The first element, a current disorder, is reflected in multiple post-service treatment records showing a diagnosis of obstructive sleep apnea.  The second element is met by the Veteran's service-connected allergic rhinitis.

Therefore, the only remaining inquiry is whether there is a nexus between the Veteran's sleep apnea and his service-connected allergic rhinitis. 

In a March 2016 letter from Dr. C.L. Spinweber, the Veteran's sleep apnea diagnosis is noted.  Dr. Spinweber. indicated that she reviewed the Veteran's service treatment records, post-service medical records, and his sleep history, in addition to an in-person examination.  Based on such, she determined that it was at least as likely as not that the Veteran developed sleep apnea while on active duty, and that it was caused by the Veteran's service-connected rhinitis.  As rationale, the doctor explained in great detail that the Veteran had a long history of severe allergic rhinitis that started during active duty service.  Dr. Spinweber noted that the Veteran was told by others that he snored disruptively during sleep and was observed to stop breathing during sleep.  She indicated that chronic abnormalities of the upper airways, including allergic rhinitis, are a major factor in the development of snoring, upper airway obstruction, and obstructive sleep apnea. 

The Board finds that Dr. Spinweber's detailed opinion provides a reasonable basis for linking the Veteran's obstructive sleep apnea with his service-connected allergic rhinitis.  Therefore, the third and final element of secondary service connection is met.  Wallin, supra. 

Accordingly, the benefit of the doubt will be conferred in the Veteran's favor and his claim of entitlement to service connection for obstructive sleep apnea, as secondary to allergic rhinitis, is granted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. 
§§ 3.102, 3.400; Gilbert, supra.
ORDER

 Service connection for obstructive sleep apnea is granted.




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs