Citation Nr: 18144579 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-33 545 DATE: October 24, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT There is at least an approximate balance of positive and negative evidence regarding whether the Veteran’s obstructive sleep apnea disability was caused or aggravated by his service connected sinusitis. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1993 to June 2000. The claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected sinusitis and rhinitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2018). 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2018). 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.§ 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Review of the Veteran’s service treatment records (STRs) are negative for diagnosis of sleep apnea. Private medical records dated while he was still on active duty reflect a negative sleep study in April 2000. VA treatment records dated in 2001 show that when being treated for his sinusitis/rhinitis problems, the Veteran continued to be “worried” that he had sleep apnea. Private records dated in 2006 reflect continued treatment for sinusitis and rhinitis and bilateral anterior turbinate hypertrophy. Obstructive sleep apnea syndrome was also diagnosed. Private records from 2013 from private physician, P.B., M.D., reflect a diagnosis of obstructive sleep apnea. VA medical opinion was obtained in April 2014. Following review of the claims file, it was the examiner’s opinion that the Veteran’s obstructive sleep apnea (OSA) was less likely than not (less than 50 percent) caused by or as a result of an inservice injury or event. The doctor explained that OSA is a disorder that is characterized by obstructive sleep apnea and hypopneas caused by repetitive collapse of the upper airway during sleep. Objective diagnostic testing is necessary because the clinical features of OSA are nonspecific and the diagnostic accuracy of clinical impression alone is poor. He stated that this means that the symptoms or complaints by an individual alone are not sufficient to make the diagnosis as other situations may mimic a sleep apnea presentation. In “commentary,” the examiner noted that the Veteran had multiple risk factors for developing OSA, to include being male, his age, and family history (a brother who had sleep apnea). Though he was noted to have a diagnosis of chronic rhinosinusitis, private records noted in in January 2014 that it was asymptomatic at times. Therefore, in his opinion, it was more likely that factors other than sinusitis/rhinitis played a role in the development of the Veteran’s OSA. In an October 2014 statement, a private physician, T.J.O., M.D., submitted a statement in support of the Veteran’s claim. He indicated that the Veteran’s OSA was secondary to his sinusitis. He explained that sinusitis was a “known cause” of sleep apnea or worsening sleep apnea. He also reported that mouth breathing would make obstruction more likely. Additional VA opinion was obtained and in an April 2016 by a VA nurse practitioner. It was her opinion that the Veteran’s OSA was less likely than not proximately due to or the result of service-connected sinusitis. She stated that there was no diagnostic medical evidence to support his claim that sinusitis caused his sleep apnea. She noted the negative sleep study in 2000. While he was diagnosed with OSA in 2013, there was no medical evidence to support aggravation as he was treated with surgery for his allergic rhinosinusitis with documented improvement in his symptoms long before he was diagnosed with sleep apnea. The Veteran has an established diagnosis of OSA. He is also service connected for sinusitis. The VA examiner acknowledges that sinusitis was a “known” cause of sleep apnea or worsening of sleep apnea but failed to provide sufficient rationale as to why it was not a factor in the Veteran’s OSA. The VA nurse found that causation or aggravation was unlikely. An explanation was provided. However, as discussed, the private physician provided a positive opinion along with supporting rationale. Thus, as to the question of whether a relationship exists between the Veteran’s OSA and sinusitis, the evidence is at least in equipoise. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for obstructive sleep apnea is granted. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith