Citation Nr: 1800626	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-20 620	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected asthma, posttraumatic disorder (PTSD), or traumatic brain injury (TBI). 
 

REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 
INTRODUCTION

The Veteran served on active duty, to include a period from June 2005 to April 2007.  

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for sleep apnea. 

The Veteran testified at a travel Board hearing before the undersigned Veteran Law Judge (VLJ) in June 2016 and transcript of the hearing is of record. 


FINDINGS OF FACT

The Veteran's OSA is secondary to his service connected asthma


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.   
Ordinarily, the Board must ensure that the required notice and assistance provisions of the VCAA have been properly applied.  In this case, however, the Board is granting in full the benefit sought on appeal.  Therefore, the Board need not discuss whether there has been compliance with the VCAA, as any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2017). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

II. Service Connection 

The Veteran contends that service connection for his OSA is warranted. 

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) (2015).  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. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In this case, sleep study from August 2010 reflects that the Veteran was diagnosed with OSA. Therefore, element (1), a current disability, has been satisfied.

With respect to element (2), the Board finds that the evidence is in relative equipoise.  That is, a March 2014 VA medical nexus opinion of record reflects that the Veteran's OSA was less likely than not etiologically related to his military service.  The examiner reasoned that the Veteran's service treatment records do not document complaints or treatment for symptoms of OSA or otherwise show diagnosis of OSA.  The examiner further concluded that "evidence-based medical information" does not show that asthma, PTSD, or TBI as either a cause or aggravating factors of OSA. On the contrary, the record contains a positive nexus opinion authored by an Allergy and Immunology specialist, Dr. D.D., in August 2013.  In this opinion, Dr. D.D. indicated that he has reviewed the Veteran's medical history and concluded that his OSA is at least as likely as not caused by his asthma. Dr. D.D. explained that "any form of uncontrolled source for airway obstruction, including asthma can contribute to or worsen [OSA]" and the Veteran's OSA symptoms started after he developed asthma.  Dr. D.D. also highlighted that the Veteran does not have any other known risk factor for OSA. For these reasons, Dr. D.D. concluded that the Veteran's OSA is at least as likely as not incurred or caused by his asthma. 

After reviewing both nexus opinions of record, the Board finds that neither the positive nor negative opinion is more probative than the other in assessing the etiology of the Veteran's OSA. Under such circumstance, the positive and negative evidence in this case is in a state of equipoise sufficient to grant the Veteran's claim. 38 U.S.C. § 5107 (b) (2012). 


ORDER

Service connection for obstructive sleep apnea is granted. 



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs