Citation Nr: 1757516 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-21 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to environmental hazards and/or an undiagnosed illness. REPRESENTATION Veteran represented by: Elizabeth F. Lunn, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991, January 1994 to January 1997, and December 2002 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his OSA is at least as likely as not etiologically related to his service. CONCLUSION OF LAW The criteria for service connection for OSA have been met. 38 U.S.C. § 1110, 1131, 5107(b) (2002); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the claim for service connection is herein granted any error related to the VCAA is moot. 38 U.S.C. §§ 5103, 5103A (2002); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In relevant part, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131 (2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran asserts that his currently diagnosed OSA was caused by in-service exposure to environmental hazards and/or irritants while stationed in Kuwait and Iraq. See Board Hearing Transcript. He reports manifestations of his condition immediately upon return from deployment, but notes a delay in diagnosis as his OSA was initially misdiagnosed as a symptom of his service-connected anxiety disorder. See November 2011 Statement in Support of the Claim. Turning to the record, an August 2010 VA examination confirms a diagnosis of OSA. Military personnel records confirm Persian Gulf service. Further, a December 2003 post-deployment reassessment indicates the Veteran reported exposure to: smoke from burning trash or feces, vehicle or truck exhaust, JP8 or other fuels, and smoke from burning vehicles. There is nothing in the record that makes the Board question the Veteran's exposures to these contaminants. Thus, the first and second elements of Shedden are met. What remains for consideration is a nexus correlating the Veteran's current disability to service. In December 2011, his treating physician Dr. J. T., M. D., D-ABSM (board certified doctor of sleep medicine), opined that in-service fume exposure more likely than not contributed to his development of OSA. Dr. T. explained that the collective record, including the Veteran's statements, supported a correlation between his current OSA and in-service exposure. As to lay and clinical evidence, the record established that prior to deployment the Veteran was negative for OSA symptomatology. However, immediately upon return from deployment he reported daytime sleepiness, fatigue, and other hallmark symptomatology associated with OSA. Such supports manifestation within service. As to current medical knowledge, Dr. T. agreed that literature did not specifically correlate OSA to exposure to burn pit fumes. Nevertheless, literature supported some link between general air pollution and the development of sleep disorders. In addition, Dr. T. indicated that studies establish that Veterans are four times more likely than average Americans to develop sleep apnea. In combination these findings are suggestive that the Veteran's in-service exposure would have put him at risk for development of OSA. Dr. T. also explained why the record did not support a causal relationship between the Veteran's OSA and his noted post-service weight gain. Essentially, if the Veteran's OSA was related to weight-gain then weight-loss would have demonstrated an improvement or resolution of the condition. However, in the instant case, clinical testing revealed a worsening of his OSA following significant weight loss. Moreover, even "without [an] elevated body mass index" the Veteran's OSA remained active and unresolved. Such results rebut OSA being causally related to weight-gain. In turn, without weight being a factor, all that remains is the Veteran's in-service exposure. The Board finds Dr. T.'s opinion highly probative and thoroughly rationalized against the clinical and lay evidence of record. The Board acknowledges that there are negative opinions of record; however, this evidence is determined to be no more probative than the aforementioned positive opinion. Notably, the negative opinions of record do not address Dr. T.'s specific contentions regarding clinical records supporting that the Veteran's OSA was unrelated to weight-gain. They also do not address the Veteran's reports of manifestation of symptomatology immediately upon return from deployment, which was prior to his weight gain. In light of the record and the governing legal authority, the Board finds that the evidence is, at the very least, in equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit-of-the-doubt rule applies and the requirement of a nexus is thereby met. Entitlement to service connection for OSA is warranted. ORDER Entitlement to service connection for OSA is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs