Citation Nr: 1811519 Decision Date: 02/23/18 Archive Date: 03/06/18 DOCKET NO. 11-12 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to a nasal fracture or as secondary to service-connected sinusitis. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1987 to September 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). In May 2014 and August 2017 this issue was remanded for further development. The case is now assigned to the undersigned. FINDING OF FACT Competent medical evidence establishes that the Veteran's service connected sinusitis contributed to cause his OSA. CONCLUSION OF LAW Service connection for OSA is warranted. 38 U.S.C. §§ 101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C.§ 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that his currently diagnosed OSA is due to a nasal fracture in service or is secondary to his service-connected sinusitis. [Notably, he has established service-connection for an injury residual scar on the nose, but not for a nasal fracture. His service treatment records (STRs) are silent for complaints, treatment, or diagnosis pertaining to OSA. OSA and hypersomnia were diagnosed following a VA sleep study, in November 2008. A May 2009 VA treatment record notes the Veteran's report of difficulty tolerating a CPAP; he related that the air pressure makes it difficult to breathe and causes sinus drainage. On January 2013 VA examination, it was noted that OSA was diagnosed five years prior. The examiner indicated that she could not resolve whether or not the Veteran's OSA is related to a nasal fracture in service without resort to mere speculation because a nasal fracture in service was never confirmed by imaging studies. In an April 2013 VA addendum, the provider opined that it is less likely than not that the Veteran's OSA is secondary to his service-connected chronic sinusitis, deviated septum and nasal polyps. The examiner noted that "torus palatinus is a developmental malformation of the hard palate characterized by bony enlargement that occurs in the midline of the hard palate- the roof of the mouth separating the oral cavity from the nasal cavity, and there is no medical evidence that it causes or aggravates OSA." She further opined that the Veteran's OSA is less likely as not secondary to residuals of a broken nose, nasal polyps or chronic sinusitis because there is no documented evidence of OSA prior to the Veteran's surgical correction of a deviated septum and other nasal abnormalities. A May 2014 Board remand noted that the January 2013 VA examination and April 2013 addendum opinion were inadequate and requested a clarifying addendum opinion. In an April 2016 DBQ on behalf of VA, the provider opined that the Veteran's OSA is less likely as not related to, or a residual of, a nasal fracture in service. He explained that sleep apnea tends to be multifactorial in nature, including genetic factors, respiratory conditions, neurological deficit and/or idiopathic, and that there is no causality between a nasal fracture in-service (or any residuals) and sleep apnea. He explained that although difficulty sleeping may be one of many symptoms of a nasal fracture and residuals, the nasal fracture in service is not a contributing factor or cause of sleep apnea. In a June 2016 addendum, the April 2016 examiner opined that it is at least as likely as not that the Veteran's OSA was aggravated beyond its natural progression by his service-connected sinusitis. He explained that chronic sinusitis can cause nasal passage obstruction, reducing air flow in and out of the lungs causing aggravation and dyspnea. On September 2017 DBQ on behalf of VA, the examiner opined that the Veteran's OSA is less likely than not due to or a result of his service-connected condition because OSA was diagnosed with several years after service and there is "no clinical correlation or suggestion between OSA and a chronic nasal issue". The theory of entitlement proffered is primarily one of secondary service connection, i.e., that the Veteran's OSA is a residual of a nasal fracture in service, or is secondary to his service-connected sinusitis. Regarding the nexus to a nasal fracture in service theory, the Board observes that while the Veteran has established service connection for a nasal scar (due to injury in service), service connection has not yet been established for a nasal fracture (and a medical provider has noted that a nasal fracture has not been confirmed by imaging studies). The Veteran has established service connection for sinusitis, and it is not in dispute that he has OSA; OSA was diagnosed by VA in November 2008. Whether or not the Veteran's OSA was caused or aggravated by his service-connected sinusitis is a medical question. The record contains conflicting medical opinion addressing that question: a September 2017 opinion against the Veteran's claim, and an opinion supporting the claim in a June 2016 addendum to an April 2016 DBQ. The rationale included with the September 2017 opinion against the Veteran's claim cites to the length of the intervening period between service and the diagnosis of OSA. That factor is more relevant to a direct, rather than secondary, theory of entitlement. The statement that there is no correlation between OSA and a chronic nasal issue is conclusory and does not address the rationale provided in June 2016. The Board finds that the April 2016 DBQ and June 2016 addendum opinions, cumulatively, merit probative value (and are persuasive). They explain why the Veteran's OSA would not be related to a nasal fracture in service, and why sinusitis would have contributed to the development of OSA . In the June 2016 opinion the provider explained the process whereby OSA develops (i.e., sinusitis causes obstruction of nasal passages, which reduces air flow in and out of the lungs). The opinion reflects the provider's familiarity with the record, and the provider cites to supporting clinical data. Accordingly, the Board finds the opinion supporting the Veteran's claim probative and persuasive. The requirements for establishing secondary service connection are met; service connection for OSA as secondary to service connected sinusitis is warranted ORDER Secondary service connection for OSA is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs