Citation Nr: 18155481 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-20 215A DATE: December 4, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals of a nose injury is denied. FINDING OF FACT The competent and probative evidence of record does not show that the Veteran’s sleep apnea was caused by service or was caused or aggravated by his service-connected residuals of a nose injury. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to service-connected residuals of a nose injury have not been met. 38 U.S.C. §§ 1131, 5107 (b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1980, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this matter in November 2015. The Board notes that during the course of this appeal, the issue of entitlement to service connection for bilateral hearing loss was before the Board. In a May 2016 rating decision, the RO granted service connection for bilateral hearing loss with a noncompensable disability rating effective September 15, 2011. Thus, this appeal has been granted in full and is no longer before the Board. The Board finds there has been substantial compliance with its November 2015 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals of a nose injury Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The term “active military, naval or air service” is further defined as (1) active duty or a period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101 (24). Service connection for disability arising from INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, not pertinent here). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Service connection may also be established on a secondary basis for a disability that is shown to be 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. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that his sleep apnea was caused by service. The Veteran also asserts that his sleep apnea was caused by the service-connected nose injury he incurred in service. Service treatment records are silent for complaints, treatment, or diagnosis of a sleep condition. In an October 2011 statement, the Veteran stated that he suffered from obstructive sleep apnea due to the injury to his nose and face. In an April 2012 VA examination, the Veteran stated that he underwent repair and a deviated septum in late 1981. He said started snoring after that and was later diagnosed with sleep apnea in 2004. The examiner opined that it was less likely as not that the Veteran’s sleep apnea was secondary to his service-connected deviated septum status post septorhinoplasty. The examiner based his rationale on the Veteran’s medical record, medical literature and clinical experience. He stated that medical literature supported that septorhinoplasty could improve snoring and sleep apnea. There was no research that showed septorhinoplasty caused sleep apnea. There was no objective evidence that the Veteran’s service-connected deviated septum status post septorhinoplasty caused his sleep apnea. The examiner stated that in his opinion, the Veteran’s obesity, anatomic short neck, narrowed airway, and Class IV Mallampati were his risk factors for sleep apnea. In the May 2012 notice of disagreement, the Veteran stated that he did not have sleep apnea or sinus problems until after he lacerated his nose, causing a deviated septum. He said that he began snoring loudly and at times would stop breathing in his sleep. The Veteran stated that he had been treated for restricted breathing in his right nostril (blocked due to internal and external scar tissue) from his original active duty injury. Additionally, the Veteran asserted that his roommate during service complained of his loud snoring after the injury and his wife could also attest to the fact that she could not sleep near him following the injury due to his snoring. The Veteran said that he was always tired and developed hypertension and sore swollen joints even though he was not overweight. The Veteran further stated that he was not obese at the moment and had on 2 occasions lost in excess of 60 pounds but it did not resolve his sleep apnea problems. He said he suffered from fatigue, headaches, snoring and daytime drowsiness since the injury, and did not drive long distances for fear of falling asleep at the wheel. In the June 2014 VA Form 9, the Veteran stated that once leaving service he noticed that the air flow on the right side was compromised. He said he dealt with it for years until his brother-in-law told him about sleep apnea. He said the doctor told him that his condition was due to the scar tissue on the right side of his sinus. In a January 2016 VA opinion, the examiner opined that the Veteran’s sleep apnea was less likely as not secondary to his service-connected deviated septum status post septorhinoplasty. The examiner also opined that the Veteran’s sleep apnea was not aggravated by his service-connected residuals of a nose injury. The examiner based his reasoning on the Veteran’s medical record, medical literature and clinical experience. The examiner stated that medical literature supported that septorhinoplasty could improve snoring and sleep apnea. There was no research that showed septorhinoplasty caused sleep apnea. There was no objective evidence that the Veteran’s service-connected deviated septum status post septorhinoplasty caused his sleep apnea. The examiner stated that in his opinion, the Veteran’s obesity, anatomic short neck, narrowed airway, and Class IV Mallampati were his risk factors for sleep apnea. The examiner further added that obstructive sleep apnea occurred when the tongue, tonsils, or other tissues in the back of the throat blocked your airway. The Veteran’s sleep apnea was a collapse of oral airway and not directly caused by nasal obstruction. The examiner stated that regardless, there was no objective evidence of nasal obstruction. Therefore, there was no objective evidence that the Veteran’s sleep apnea was caused or aggravated by his service-connected deviated septum status post septorhinoplasty. Additional post-service treatment records show treatment for sleep apnea. However, no nexus opinion was provided relating the Veteran’s sleep apnea to service or to his service-connected residuals of a nose injury. Overall, the evidence of record reflects that the Veteran’s sleep apnea began many years after his service and is not related to service. The Board notes the Veteran’s testimony that he started to develop sleep issues in service shortly after his nose injury. Additionally, the Board recognizes the Veteran’s argument against the VA examiners’ opinions that he had lost weight and was not obese. However, upon examination, there was no evidence that the Veteran’s sleep apnea was related to service or to his service-connected residuals of a nose injury. Moreover, these examinations used the Veteran’s weight as only one of the reasons as to what caused his sleep apnea. Finally, the VA treatment records also made no such finding. The Veteran is competent to report symptoms of his conditions; however, he is not competent to make any such medical determination that his disorder is related to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the preponderance of the evidence is against the Veteran’s claim for service connection for sleep apnea. The probative evidence of record demonstrates that such is not related to his service or his service-connected residuals of a nose injury. In this regard, the Board places great probative weight on the overall VA examiners’ opinions that the Veteran’s sleep apnea was less likely than not related to service and/or his service-connected residuals of a nose injury. These opinions, specifically the January 2016 VA opinion, had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. No contrary probative medical opinion is of record. Thus, the Board finds that service connection for sleep apnea, to include as secondary to service-connected residuals of a nose injury is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel