Citation Nr: 1800434 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-28 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus and stroke. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran's wife ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. This matter came before the Board of Veterans Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was scheduled for a Travel Board hearing before a Veteran's Law Judge in December 2013, but failed to report to the hearing. In January 2014, the Board remanded this matter for further evidentiary development. In January 2015, the Board deferred the issue on appeal pending a determination regarding the Veteran's entitlement to service connection for a mood disability. In February 2015, the RO issued a rating decision granting an increase in the Veteran's evaluation for ischemic stroke with neurocognitive disorder, finding that a psychiatric disorder was a residual of the stroke. In March 2017, the Board found the Veteran had shown good cause for failing to attend the December 2013 hearing and remanded the issue on appeal for a Travel Board hearing. The Veteran testified before the undersigned Veteran's Law Judge during a July 2017 Travel Board hearing. The transcript of the hearing is of record. FINDING OF FACT The Veteran's obstructive sleep apnea was caused by the Veteran's service-connected stoke. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1110, 1157, 5107 (2012); 38 C.F.R. § 3.102, 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A full grant of benefits sought on appeal is granted herein. As such, the Board finds that any error related to the VCAA with regard to the issue on appeal is moot. See 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A § 1110; 38 C.F.R. § 3.303(a). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must 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); see also Allen v. Brown, 7 Vet. App. 439 (1995). 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 (West, 2004); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, "the preponderance of the evidence must be against the claim." Id. at 54. In the present case, the Veteran contends that his sleep apnea is caused or aggravated by his service connected stroke. First, the Board finds that the Veteran has a current disability of sleep apnea. The medical evidence indicates that the Veteran was diagnosed with obstructive sleep apnea in 2009. Second, the Board notes that the Veteran is service connected for a stroke and its residuals. The Veteran's medical records indicate that he suffered a stroke in June 2009 and was diagnosed with obstructive sleep apnea after a sleep study in February 2010. The Veteran had a VA examination in October 2011that concluded that the Veteran's sleep apnea was not likely secondary to service-connected diabetes, hypertensive heart disease, arthritis, peripheral neuropathy and ischemic heart disease. The examiner observed that obstructive sleep apnea is caused by anatomic or neural factors and found that the conditions listed above were not contributing factors to the development of obstructive sleep apnea. The Veteran had another VA examination in March 2014 to consider the etiology of his sleep apnea. The examiner noted the Veteran's statements that his sleep problems started after his 2009 stroke. In the medical opinion portion of the report, the examiner addressed the question of whether the sleep apnea was caused by the Veteran's service-connected diabetes mellitus and its associated conditions. In response to this question, the examiner stated that he agreed with the original examiner's opinion that the Veteran's sleep apnea is not secondary to his service-connected conditions. In response to a question about the impact of leptin resistance and whether it could be caused by diabetes, the opinion states that leptin resistance is still a research tool and not clinically useful. The examiner also stated that the Veteran's service-connected conditions did not aggravate his sleep apnea but noted that sedating medications for the Veteran's non-service connected conditions, such as his mood disorder, may be making his sleep apnea worse. A VA medical opinion was obtained in May 2015 to address the question of whether the Veteran's medications aggravated his sleep apnea. The opinion found no evidence of chronic worsening beyond natural obstructive sleep apnea progression, noting that the medications at issue had been discontinued and the Veteran's condition had improved as a result. The Veteran submitted a disability benefits questionnaire (DBQ) from a VA provider in August 2016. The DBQ notes that the Veteran's sleep apnea had its onset in 2009 following his stroke and that the Veteran has snoring, daytime somnolence, disturbed sleep, apneic episodes and fatigue. The DBQ does not offer an opinion as to the etiology of the Veteran's sleep apnea. The Veteran submitted a DBQ from a private medical provider in July 2017. The provider noted that in 2009, the Veteran started snoring heavily and having episodes of apnea and that he had symptoms of daytime fatigue and decreased mental clarity. The provider also noted that the condition had its onset after the stroke. The provider concluded that it is more likely than not that the Veteran's sleep apnea is due to his stroke. The same provider submitted a supplemental DBQ in August 2017 explaining the basis of this opinion. The August 2017 DBQ states that the Veteran's stroke caused deeper sleep, and that this combined with weight gain to a lack of usual activity caused the development of obstructive sleep apnea. As discussed, the Veteran contends that his sleep apnea is caused or aggravated by his service-connected stroke, and does not contend that he is entitled to direct service connection. The Board will therefore consider whether he is entitled to service contention on a secondary basis. The Board finds that the VA examinations of record do not address the question of whether the Veteran's sleep apnea is caused or aggravated by his service-connected stroke. The October 2011 examination considered the Veteran's service connected conditions, but specifically stated that sleep apnea was less than likely caused by diabetes, hypertensive heart disease, arthritis, peripheral neuropathy and ischemic heart disease. Stroke was not included in that list. While the examination report notes the stroke in its summary of the Veteran's medical records, the opinion section does not discuss stroke. The Board therefore finds that it is not clear that the October 2011 examination includes the Veteran's stroke in its analysis and accords it no probative weight regarding the question of whether the Veteran's stroke caused his sleep apnea. The March 2014 VA examiner stated that he agreed with the October 2011 VA examiner's opinion regarding secondary service connection, but did not specify whether he had considered the impact of stroke in addition to the conditions mentioned in the prior examination. The question the March 2014 examiner was answering was whether the Veteran's sleep apnea was caused or aggravated by the Veteran's service-connected diabetes mellitus and associated conditions. As the examiner was not asked whether stroke caused the Veteran's sleep apnea and the report did not specifically mention stroke in its discussion of secondary service connection, it is not clear to the Board that the conclusions apply to stroke. In addition, the Board notes that the March 2014 examiner concluded that the Veteran's sleep apnea was not secondary to his service-connected conditions, but provided no rationale for this opinion. The only additional statement offered is that leptin resistance is not clinically useful, but this is a response to a separate question about whether diabetes could have caused leptin resistance rather than a rationale for the prior conclusion. The statements offered do not provide any indication as to which service-connected conditions were considered and why they could not have caused sleep apnea. A medical examination report, as this one, that fails to provide a reasoned medical explanation for its conclusions is inadequate. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board therefore accords it no probative weight. The May 2015 VA medical opinion addressed the question of whether the medications the Veteran takes to treat stroke residuals aggravated his sleep apnea, but did not provide an assessment of whether the stroke itself caused or aggravated the sleep apnea. The Board therefore accords it no probative weight regarding the question of whether the stroke itself caused his sleep apnea. The Veteran has testified that he did not have sleep problems prior to his stroke in June 2009 and that his sleep problems began later that year, after the stroke occurred. His wife also provided testimony that she noticed that his sleep apnea began after his stroke. The Board notes that the Veteran and his wife are competent to report lay-observable symptoms such as sleep disturbance and the time of its onset and accords their statements significant probative weight. See Layno v. Brown, 6 Vet. App. 465, 470 (lay testimony is competent to prove that a claimant exhibited certain symptoms and the time period that those symptoms appeared). The Board also notes that their testimony that the Veteran's sleep problems had their onset after his stroke is consistent with all the medical evidence of record. As discussed above, the Veteran's private medical provider submitted DBQs in July and August 2017 regarding the relationship between the Veteran's sleep apnea and his service-connected stroke. While the initial DBQ does not provide a rationale for its conclusion that the Veteran's stroke likely caused his sleep apnea, this rationale is provided by the supplemental statement from August 2017. The opinion notes the onset of heavy sleep and apnea after the 2009 stroke and connects the development of apnea to that heavier sleep and to weight gain. While it is unclear as to whether the weight gain has been caused by the stroke or for that matter one of the other service connected disabilities, the fact still remains that the only competent and probative evidence of record associates the sleep apnea, at least in part, to the stroke. There is no evidence that the private medical provider was not competent or credible, and as the reports provide a clear conclusion with a supporting rationale, the Board finds they are adequate for appellate review and entitled to significant probative weight with respect to the etiology of the Veteran's sleep apnea. Nieves-Rodriguez, 22 Vet. App. at 302-05. As the March 2014 VA examination has been found to be inadequate and the other VA opinions of record do not address the role of stroke in the etiology of the Veteran's sleep apnea, the only competent medical opinions of record regarding whether the Veteran's sleep apnea is caused by or related to his stroke are the July and August opinions submitted by his private medical provider. The Board therefore finds that the competent medical evidence of record indicates that the Veteran's sleep apnea is caused by his service-connected stroke and that service connection for sleep apnea is warranted. 38 C.F.R. § 3.310(a). ORDER Service connection for sleep apnea is granted ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs