Citation Nr: 1717887 Decision Date: 05/23/17 Archive Date: 06/05/17 DOCKET NO. 08-32 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. The appellant is a Veteran who joined the Florida National Guard in March 30, 1990 and remained a member until November 26, 2005. While his service in the Florida National Guard was not active duty service, he served on active duty in the United States Army from May 1990 to March 1991 and from February 2003 to July 2004. From October 2002 to February 2003, the Veteran also served on active duty special work (ADSW), which is a form of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This claim has been remanded by the Board of several previous occasions, including most recently in July 2015. All development requested in the July 2015 remand has been completed and the claim has been returned to the Board for further consideration. FINDING OF FACT The most competent, credible, and probative evidence establishes that the Veteran's obstructive sleep apnea is aggravated by his service-connected asthma disability. CONCLUSION OF LAW Service connection for obstructive sleep apnea is granted. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision herein to grant service connection for obstructive sleep apnea constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations in regard to this issue. The Veteran is seeking entitlement to service connection for obstructive sleep apnea (OSA), which he has asserted began while he was on active duty and has continued since that time. In the alternative, he has also asserted that his OSA was caused or aggravated by his service-connected asthma disability. In this regard, the Veteran has asserted that his asthma interferes with his sleep as it blocks his efforts to breathe while sleeping and, thus, aggravates his OSA. See Representative's Brief dated April 2014. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101 (21), (24), 106; 38 C.F.R. § 3.6 (a), (d). Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; 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, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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). Review of the record shows the Veteran was diagnosed with mild obstructive sleep apnea in April 2007. Accordingly, the first element of service connection (current disability) is established. The evidentiary record contains several medical opinions that address the likelihood that the Veteran's OSA is directly related to his military service and/or his service-connected asthma disability. In 2016, Dr. A.H., a VA Sleep Medicine Specialist, reviewed the record and opined that there was less than 50 percent probability that the Veteran's asthma caused or worsened his OSA, noting that there was little data linking causality of sleep apnea to asthma. However, in 2017, Dr. A.H. submitted an addendum opinion wherein he noted that a recently published paper explored the bidirectional relationship between sleep apnea and asthma and cited several publications that supported a finding of asthma worsening sleep apnea and vice versa. The paper specifically cited the direct mechanical effects of asthma worsening sleep apnea. Dr. A.H. stated that, given this additional information, it is, now, his medical opinion that it is at least as likely (50 percent) that the Veteran's asthma aggravates his sleep apnea beyond natural progression. The Board finds that Dr. A.H.'s medical opinion provides competent and credible evidence of a nexus between the Veteran's current OSA disability and his service-connected asthma. Notably, Dr. A.H. provided a complete rationale in support of his opinion and there is no opposing medical evidence or opinion of record that considers the medical literature cited by Dr. A.H. and outweighs his opinion. The Board also finds probative that his opinion is consistent with the Veteran's competent lay assertions regarding how his asthma has aggravated his sleep apnea since service. In view of the foregoing, the Board finds that a basis upon which to grant service connection for OSA has been presented. Therefore, service connection for OSA as secondary to service-connected asthma is granted. 38 C.F.R. § 3.310. ORDER Service connection for obstructive sleep apnea, as secondary to service-connected asthma, is granted. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs