Citation Nr: 1753866 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 11-11 988A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for sleep apnea claimed as secondary to sinusitis/rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from October 2002 to April 2003 and August 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran was afforded a hearing before the undersigned Veterans' Law Judge (VLJ) in July 2016. A copy of the transcript is of record. This case was remanded for further development in November 20016. At that time, the issue of entitlement to service connection for sinusitis and/or rhinitis was also remanded. In a January 2017 rating, however, service connection for allergic rhinitis was granted. As the benefit sought on appeal has been granted, the Board no longer has jurisdiction over this issue. In July 2017, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received by the Board in November 2017. FINDING OF FACT Obstructive sleep apnea is as likely as not secondary to the service-connected rhinitis. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection on a secondary basis for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appeals the denial of service connection for sleep apnea. He has been diagnosed with obstructive sleep apnea and claims that his sleep pattern has been unstable since his deployment to Iraq. He argues that his sleep apnea may be directly related to service and/or secondary to his service-connected posttraumatic stress disorder (PTSD), traumatic brain injury (TBI) and/or rhinitis. There is also some indication in the record that the Veteran's sleep problems are due to his back and knee pain. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be established for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310 was amended effective October 10, 2006, this claim was filed after the amendment, and as such the current version of 38 C.F.R. § 3.310 is applicable to the claim on appeal. In this case, the Board has been presented with conflicting evidence as to the etiology of the Veteran's obstructive sleep apnea. In this regard, during the February 2009 VA pulmonary consultation, it was noted that the Veteran endorsed frequent nightmares and sleep disturbances related to back and knee pain. Examination results revealed evidence of severe obstructive sleep apnea complicated by sleep induced hypoxemia and a presenting Epworth Sleepiness Scale score of 12. In a February 2009 mental outpatient examination, the Veteran reported sleep difficulty and noted that his sleep had been interrupted by vivid and really bad nightmares always about Iraq. In November 2016, it was opined that the Veteran's sleep apnea was less likely as not secondary to his service-connected PTSD/TBI. The examiner reasoned that the CT scans and MRIs did not reveal sufficient post-traumatic changes to link the sleep apnea to the service-connected TBI. It was also found that, while it is not outside of the realm of possibility, the PSG done in 2008 revealed an obstructive not central cause. Therefore, the examiner opined that the obstructive sleep apnea was less likely than not related to or made worse by the service-connected TBI or PTSD. In January 2017, another VA examiner found that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected sinusitis/rhinitis. In short, the examiner found that allergic rhinitis does not lead to sleep apnea. A March 2017 VA examiner also found that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The VA examiner noted that the Veteran was diagnosed with severe obstructive sleep apnea in 2008 based on the records and there was no definitive evidence for cause and effect at this point. It was explained that obstructive sleep apnea is caused by complete or partial obstructions of the upper airway and it is characterized by repetitive episodes of shallow or paused breathing during sleep, despite the effort to breathe, and is usually associated with a reduction in blood oxygen saturation. There is no evidence he found to suggest that the Veteran's diagnosis of PTSD would cause reduced oxygen saturations when sleeping. The examiner also stated that the Veteran has significant PTSD per chart review with ongoing issues with nightmares and emotional instability. He found, however, that there was no definite evidence that it would have aggravated the Veteran's obstructive sleep apnea which occurs by a separate physiological process. The examiner further found that the Veteran has a traumatic brain injury which can cause central sleep apnea but there is not enough evidence that it can cause or aggravate an obstructive sleep apnea. In a November 2017 opinion, Dr. B also found that the Veteran's obstructive sleep apnea did not have its onset in service and was not caused by service. He further opined that it is not as likely as not the case that the Veteran's sleep apnea was caused and/or aggravated beyond the normal progress of the disorder by pain due to the Veteran's service-connected low back pain, right knee and left knee disabilities. Dr. B, however, found that although rhinitis may not be causative of sleep apnea it certainly can worsen the condition and make it harder to treat. In this case, he stated that specific review of the record indicates the Veteran's difficulty wearing the CPAP mask due to his rhinitis making it more likely than not an aggravating factor of his sleep apnea. While the Board has been presented with positive and negative evidence on this matter, the Veteran's statements in conjunction with the opinion from Dr. B that the Veteran's service connected rhinitis more than likely aggravates his obstructive sleep apnea place the evidence at least in equipoise. Notably, Dr. B. has an expertise in somnology. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea as secondary to the service connected rhinitis is granted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs