Citation Nr: 1724056 Decision Date: 06/26/17 Archive Date: 07/10/17 DOCKET NO. 10-17 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service connected asthma. REPRESENTATION Appellant represented by: Attorney at Law: Kenneth L. LaVan, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to October 1991. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO received the Veteran's notice of disagreement (NOD) in May 2009. In an August 2009 Appeal Election Form, the Veteran elected to have his appeal processed by a Decision Review Officer (DRO) rather than through the traditional appeal process. In April 2010 the RO issued a Statement of the Case (SOC) continuing to deny service connection for sleep apnea because there was no evidence of a chronic condition during service. In a statement in support of claim dated March 2010, the Veteran withdrew his request for a DRO review and requested a Board hearing. The March 2010 statement was accepted as VA Form 9. In an April 2010 VA Form 21-0820, Report of General Information, a VA employee reported that during a telephone conversation, the Veteran reported that he was withdrawing his sleep apnea claim. In May 2010, the Veteran, through his representative submitted documents to the RO asserting that the Veteran's sleep apnea was secondary to his service-connected asthma. The RO construed the May 2010 correspondence as a new claim. In September 2010 the RO granted service connection for obstructive sleep apnea secondary to service-connected asthma with fatigue and assigned a 50 percent evaluation effective May 28, 2010. In June 2013, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board Hearing. A transcript of the proceeding is associated with the electronic claims file. In a November 2014 decision, the Board found that the Veteran had withdrawn his initial claim of entitlement to service connection for sleep apnea. The Board characterized the issue on appeal as entitlement to an effective date earlier than May 28, 2010, for service connection for sleep apnea and denied the claim. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). On review, the Court found that the Board erred in finding that the Veteran had properly withdraw his claim and that the April 2009 rating decision denying the Veteran's claim of service connection for sleep apnea, was still on appeal. In a September 2016 decision the Court reversed and remanded the claim for adjudication consistent with the Court's decision. As such, the claim is again before the Board for adjudication. Notably, in a November 2016 rating decision the RO found clear and unmistakable error in the September 2010 rating decision that assigned a separate 50 percent evaluation for service-connected sleep apnea and discontinued the separate rating. The Veteran filed an NOD in December 2016. When there has been an adjudication of a claim and an NOD as to its denial, the RO will reexamine the claim and determine whether additional review or development is warranted. See 38 C.F.R. § 19.26 (2016). Upon completion of such action, if the benefit sought on appeal is not granted in full the claimant is entitled to an SOC. See 38 C.F.R. § 19.29. Where there has been no issuance of an SOC, the appropriate action by the Board is to remand the claim for issuance of an SOC rather than merely refer the claim for such action. See Manlincon v. West, 12 Vet. App. 238 (1999). Here, however, the record reflects that the RO acknowledged the Veteran's NOD in a December 2016 letter. As the claim is in review status, no further action on the part of the Board is warranted at this juncture. FINDING OF FACT The Veteran's sleep apnea was caused by steroid treatment for his service connected asthma. CONCLUSION OF LAW The criteria for entitlement to sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify & Assist The Veteran's Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. As this decision is completely favorable to the Veteran, there is no reason to belabor the impact of the VA's duty to notify and assist in this matter. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). General Legal Principles Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2016). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2016); Allen v. Brown, 7 Vet. App. 439 (1995). Analysis The Veteran asserts that his sleep apnea was caused by his service-connected asthma. As noted above, the first element of service connection requires medical evidence of a present disability. Here, the evidence shows that the Veteran was diagnosed with sleep apnea in 2008. See Private Treatment Records; July 2010 VA Examination Report. Thus, the disputed issue is whether the Veteran's sleep apnea was caused or aggravated by the Veteran's service connected asthma. As an initial matter, a May 1997 rating decision granted service connection for asthma. In May 2010, the Veteran submitted a letter from his treating physician. The physician opined that the Veteran's sleep apnea is at least as likely as not related to his service-connected asthma. The physician indicated that he reviewed the Veteran's treatment records since separation and reasoned that, "Obstructive sleep apnea is secondary to asthma and fatigue because of treatment and medication for asthma." Similarly, the Veteran was afforded a VA examination for sleep apnea in July 2010. The examination report indicates that the Veteran was diagnosed with asthma in 1991 just prior to separation and that in 1998 he was falling asleep at work. His wife reported snoring and a sleep study showed "borderline" sleep apnea. The Veteran's symptoms persisted in 2001 and 2005 but were reported as borderline. In 2008, theVeteran underwent a sleep study that confirmed sleep apnea and was issued a CPAP machine. The examiner opined that the Veteran's sleep apnea is at least as likely as not caused by or a result of his service-connected asthma. The examiner reasoned that the Veteran has significant asthma with frequent exacerbation. "These exacerbations are frequently treated with steroids-IV and/or [by mouth]. His record shows numerous courses of steroids. Steroids are well known to cause weight gain. The record reflect[s] persistent weight gain. Obesity can lead to obstructive sleep apnea. He had a sleep study in 1998 when he weighed 271 pounds that showed no sleeping disorder. His sleep study in 2005 when he weighed 315 pounds documented his obstructive sleep apnea." The Board finds the private nexus opinion probative to the issue at hand. The Veteran's treating physican is familiar with the symptoms and treatment of his service-connected asthma and the onset of his sleep apnea. The Board also finds the VA examiner's opinion adequate and highly probative to the question at hand. The examiner possessed the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided an adequate rationale for her opinion, and her opinion was based on an examination and interview of the Veteran, as well as on a review of the service treatment records, the post-service treatment records and examinations, and the lay statements of the Veteran. The opinion considered an accurate history, was definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no competent lay or medical evidence of record indicating that the Veteran's sleep apnea is not related to his service-connected asthma. Therefore the Board finds that service connection for asthma is warranted. ORDER Entitlement to service connection for sleep apnea, to include as secondary to service connected asthma is granted. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs