Citation Nr: 18145660 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-01 120 DATE: October 29, 2018 ORDER Entitlement to service connection for obstructive sleep apnea secondary to service-connected left knee disabilities is granted. Entitlement to service connection for hypertension secondary to service-connected obstructive sleep apnea is granted. Entitlement to a disability rating in excess of 30 percent for left tibia and fibular fracture with open reduction and internal affixation, nonhealing at superior tibia, and left knee patellofemoral pain syndrome is dismissed. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current diagnosis of obstructive sleep apnea is caused by his service-connected left knee disability. 2. The evidence is at least evenly balanced as to whether the Veteran’s current diagnosis of hypertension is caused by his service-connected obstructive sleep apnea. 3. In July 2018, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he requested his appeal with respect to the issue of left tibia and fibular fracture with open reduction and internal affixation, nonhealing at superior tibia, and left knee patellofemoral pain syndrome be withdrawn. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for secondary service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 3. The criteria for withdrawal of the appeal with respect to issue of left tibia and fibular fracture with open reduction and internal affixation, nonhealing at superior tibia, and left knee patellofemoral pain syndrome by the Veteran are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to May 1993 and from November 2000 to January 2004. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated in October 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, Veteran testified during a Board hearing, and a transcript of the hearing is of record. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303. Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for a claimed disability 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). 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). 1. Entitlement to service connection for obstructive sleep apnea secondary to service-connected left knee disability. The Veteran contends that his current obstructive sleep apnea is caused by or aggravated by his service-connected left knee disability. The Board concludes that the Veteran has a current diagnosis of obstructive sleep apnea that is caused by his service-connected left knee disability. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.310. A November 2011 VA treatment record reveals that the Veteran was diagnosed with severe obstructive sleep apnea based on the results of a polysomnography. VA treatment records show that the Veteran has received treatment for obstructive sleep apnea throughout the appeal period. Regarding the issue of whether the Veteran’s obstructive sleep apnea is secondary to his service-connected left knee disabilities, the record contains a positive medical opinion. In this regard, a June 2018 medical opinion from the Veteran’s VA physician reveals that the physician determined that the chronic use of opiates on the Veteran due to his chronic pain syndrome with left tibial and fibula fracture with shortening of the left lower extremity most likely worsened/caused his apneic event (obstructive sleep apnea). He explained that this is supported by multiple studies and included an article titled Pathophysiology of Sleep Apnea that discusses how the chronic use of opioids induce sleep apnea. This medical opinion is probative with respect to the issue of whether the Veteran’s obstructive sleep apnea is caused by his service-connected left knee disabilities, as the physician provided clear explanation for the opinion based on an examination of the Veteran and medical literature. The Board also finds it persuasive that there is no competent medical evidence of record that contradicts this medical opinion. In light of the foregoing, the evidence is at least evenly balanced with respect to whether obstructive sleep apnea is caused by the opioids used to treat the Veteran’s service-connected left knee disabilities and the Board resolves any reasonable doubt in favor of the Veteran. Accordingly, the Board finds that entitlement to service connection for obstructive sleep apnea is warranted. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected left knee disability and/or obstructive sleep apnea. The Veteran contends that his hypertension is caused by or aggravated by his service-connected left knee disability and/or obstructive sleep apnea. The Board concludes that the Veteran has a current diagnosis of hypertension that is caused by his service-connected obstructive sleep apnea. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.310. An October 2012 VA examination documents that the Veteran has a current diagnosis of hypertension. Furthermore, VA treatment records reveal that the Veteran has uncontrolled hypertension. Regarding the issue of whether the Veteran’s hypertension is secondary to his service-connected obstructive sleep apnea, the record contains a positive medical opinion. In this regard, a June 2018 medical opinion from the Veteran’s VA physician reveals that the physician determined the hypertension is most likely caused by or a result of his obstructive sleep apnea. The examiner explained the Wisconsin Sleep Cohort Study provides compelling evidence for causal relationship based on odds ratio between obstructive sleep apnea severity and incidence of hypertension. The physician also included a medical article titled Pathophysiology of Sleep Apnea that discussed studies that revealed an association between obstructive sleep apnea and hypertension. The article also discussed the Wisconsin Sleep Cohort study that supports a causal link between obstructive sleep apnea and hypertension. This medical opinion is probative with respect to the issue of whether the Veteran’s hypertension is caused by his service-connected obstructive sleep apnea, as the physician provided clear explanation for the opinion based on an examination of the Veteran and medical literature. The Board also finds it persuasive that there is no competent medical evidence of record that contradicts this medical opinion. Accordingly, the evidence is at least evenly balanced with respect to whether he Veteran’s hypertension is caused by his service-connected obstructive sleep apnea and the Board resolves any reasonable doubt in favor of the Veteran. Thus, the Board finds that entitlement to service connection for hypertension is warranted. Withdrawal of Appeal 3. Entitlement to a disability rating in excess of 30 percent for left tibia and fibular fracture with open reduction and internal affixation, nonhealing at superior tibia, and left knee patellofemoral pain syndrome. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran informed the Board at a hearing in July 2018 that he wished to withdraw the issue of entitlement to an increased rating for left tibia and fibular fracture with open reduction and internal affixation, nonhealing at superior tibia, and left knee patellofemoral pain syndrome. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-358 (1993). Therefore, he has withdrawn the appeal and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue and it is dismissed. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel