Citation Nr: 18149874 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-47 079 DATE: November 14, 2018 ORDER Entitlement to service connection for sleep apnea as secondary to the service-connected disability of multiple sclerosis is granted. Entitlement to service connection for cognitive impairment as secondary to the service-connected disability of multiple sclerosis is granted. FINDINGS OF FACT 1. The competent and probative evidence of record is at least in equipoise as to whether the Veteran’s sleep apnea is proximately due to the Veteran’s service-connected multiple sclerosis. 2. The competent and probative evidence of record is at least in equipoise as to whether the Veteran’s cognitive impairment is proximately due to the Veteran’s service-connected multiple sclerosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. The criteria for entitlement to service connection for cognitive impairment have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2009 to December 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Service Connection Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. 3.310 where it is demonstrated that a service-connected disorder has caused or aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran has several service-connected disabilities, including multiple sclerosis. 1. Entitlement to service connection for sleep apnea as secondary to the service-connected disability of multiple sclerosis The Veteran contends his sleep apnea is caused by service-connected multiple sclerosis (MS). Private medical records show the Veteran underwent a sleep study in May 2014. Based on diagnostic polysomnography findings, the Veteran was diagnosed with obstructive sleep apnea and advised to use a positive airway pressure (PAP) machine. The Veteran was afforded a VA examination in February 2015. The Veteran reported being constantly tired. A medical opinion was not provided. In March 2015 the Veteran and his spouse attended another VA examination. The Veteran reported that he often snored and woke up during the night, and that he has used a PAP machine since his sleep apnea diagnosis in 2014. The examiner did not provide a medical opinion because the sleep study records were not available for review at the time. At the Veteran’s most recent VA examination in April 2015, he reported that his sleep apnea symptoms included excessive sleepiness during the day, and snoring at night. The examiner opined that the Veteran’s diagnosed sleep apnea is less likely than not proximately due to his service-connected MS. The examiner explained that the medical literature does not support a medical relationship, and a nexus has not been established. In August 2015, the Veteran’s private neurologist, Dr. A. Bass, completed a disability benefits questionnaire (DBQ). Dr. Bass stated the Veteran’s MS caused fatigue. Dr. Bass provided a medical opinion in March 2017. She stated that the Veteran has been under long-term neurological care and management for relapsing MS. Dr. Bass opined that the Veteran’s MS has triggered significant sleep apnea by affecting the midbrain and brainstem. She stated that though the Veteran is being treated for MS to slow down disability accumulation, treatment will not reverse the long-term effects of the disease. The Board finds the evidence is in relative equipoise regarding the Veteran’s sleep apnea. The April 2015 VA examiner opined that there is no medical relationship between MS and sleep apnea. However, the Veteran’s private neurologist determined that the impact to the Veteran’s brain due to MS causes sleep apnea. Upon resolution of all reasonable doubt in the Veteran’s favor, the Board finds service connection is warranted for sleep apnea as secondary to service-connected MS. 2. Entitlement to service connection for cognitive impairment as secondary to the service-connected disability of multiple sclerosis The Veteran contends his cognitive impairment is caused by service-connected multiple sclerosis. In a March 2014 DBQ, Dr. Bass stated the Veteran has difficulties with short-term memory, and concluded that the Veteran’s multiple sclerosis has caused cognitive decline since 2008. At the February 2015 VA examination, the Veteran reported having difficulty with his speech and memory. The VA examiner did not provide a diagnosis or medical opinion. In April 2015, the Veteran was afforded VA examinations for mental disorders and behavioral health. The examiner determined the Veteran did not have any diagnosis for a mental health disorder, and opined that his cognitive impairment is less likely than not proximately due to service-connected MS. Dr. Bass stated in an August 2015 DBQ that based upon neurological examination findings, the Veteran had hesitant speech and word finding difficulty. Dr. Bass stated the Veteran has significant memory and speech impairment, and concluded that his cognitive impairment is due to MS. Dr. Bass provided a medical opinion in March 2017. She opined that the Veteran’s MS causes significant cognitive and memory impairment by affecting the temporal and frontal lobes of the brain. The Board finds the evidence is in relative equipoise regarding the Veteran’s cognitive impairment. The April 2015 VA examiner found the Veteran did not have a current mental health diagnosis, and opined his cognitive impairment was not due to MS. However, the Veteran’s private neurologist opined the Veteran’s cognitive impairment is caused by MS due to the affect MS has on the brain. Upon resolution of all reasonable doubt in the Veteran’s favor, the Board finds service connection is warranted for cognitive impairment as secondary to service-connected MS. The present decision is based on the record in this appeal, and carries no precedential weight as to any other pending cases. 38 C.F.R. § 20.1303. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel