Citation Nr: 1815990 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-18 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected hypertension and diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This appeal was last before the Board in November 2015, where it was remanded for further development. Since that time, the record has been supplemented with additional VA medical opinions and treatment records, thus the Board finds that there has been substantial compliance with t this latest Remand decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's sleep apnea is secondary to his service-connected diabetes mellitus and hypertension. CONCLUSION OF LAW The criteria to establish service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for sleep apnea due to service or secondary to his service-connected hypertension or diabetes mellitus. Regarding the first two elements of service connection, the Veteran has a documented current diagnosis of obstructive sleep apnea and service-connection has been in effect for HTN and DM since January 2010. The Board finds that this testimony is credible and consistent in light of the corroborating symptomatic testimony of the Veteran's spouse as noted above, and intermittent, post-service medical records nearly contemporaneous to discharge that reference complaints of tiredness. Thus, the second element of service connection is satisfied. Addressing the third element, there is conflicting medical evidence regarding whether a nexus exist between the Veteran's current diagnosis of obstructive sleep apnea and his service-connected disabilities. In a December 2015 VA examination report, the examiner provided the opinion that the Veteran's sleep apnea was less likely as not caused by or a result of service or service related disabilities. Regarding direct service connection, the examiner improperly relied upon a lack of documented treatment for the disorder in service. The examiner identified that the Veteran reported he had "always snored," but dismissed this complaint without any explanation. Regarding secondary connection, the opinion is arguably positive. Despite the negative conclusion, the examiner identified the Veteran's history of service-connected DM and HTN, and noted that they are "sometimes associated with OSA, but are not recognized as causative." No further insight was provided, despite these contradictory statements. Similarly, in a March 2016 addendum opinion, the same examiner reaffirmed his earlier remarks without further insight into the Veteran's continuity contentions or the particular medical history of his service-connected DM or HTN. Without specific citations to the record, including the medical literature provided by the Veteran, the examiner explained that "literature suggests there might be an increased risk for type II diabetes and hypertension with OSA, but has not been clearly defined," opining that sleep apnea is a common disorder. Resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for sleep apnea on a secondary basis. Here, the medical evidence is in conflict, but the facts of this case are such that additional medical nexus evidence is not required to adjudicate the claim. The Board finds that the December 2015 VA opinion is the most probative evidence of record, especially in light of the competent and credible lay statements and VAMC treating records indicating a relationship between the claimed condition and the service-connected maladies. Although the positive opinion is admittedly imperfect, when coupled with the Veteran's credible testimony, corroborated by the medical evidence demonstrating a history of sleep and fatigue complaints. The December 2015 opinion reviewed the Veteran's claims folder and the sleep study results and linked the condition to his HTN/DM. At a very minimum, the evidence is in equipoise in showing that the Veteran's sleep apnea is aggravated by the service-connected disabilities. Service connection for sleep apnea is warranted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs