Citation Nr: 1818751 Decision Date: 03/29/18 Archive Date: 04/05/18 DOCKET NO. 14-25 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for sleep apnea, to include as due to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to May 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran submitted a notice of disagreement (NOD) in July 2013. A statement of the case (SOC) was issued in May 2014. The Veteran perfected a timely substantive appeal via VA Form 9 in July 2014. Supplemental SOCs were issued in May and June 2017. In July 2017, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing; a transcript of the proceeding is of record. The Board notes that additional medical evidence was uploaded to the Veteran's electronic file subsequent to the issuance of the June 2017 supplemental SOC. However, in light of the decision herein to grant the claim on appeal, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager paperless claims processing systems. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's sleep apnea is attributable to service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for sleep apnea, as secondary to service-connected diabetes mellitus, are met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition herein with respect to the Veteran's claim of entitlement to service connection for sleep apnea, the Board need not assess VA's compliance with the VCAA with respect to these claims. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, a disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends service connection is warranted for sleep apnea. For the reasons that follow, the Board concurs and finds that the criteria are met for entitlement to service connection for a sleep apnea disability. As an initial matter, the Board notes that the Veteran has been diagnosed with obstructive sleep apnea, as reflected in a June 2012 sleep study report and confirmed in the May 2013 VA examination report. Accordingly, the Board finds that the current diagnosis element of the service connection analysis has been fulfilled. The Veteran contends that the diagnosed sleep apnea is the result of his service-connected diabetes mellitus. In his July 2013 NOD, he stated that his diabetes caused weight gain and took away his ability to exercise regularly, resulting in sleep apnea. In a November 2012 letter, Nurse Practitioner P. wrote that diabetes and sleep problems often go hand in hand. He felt that the new diagnosis of sleep apnea would worsen the diabetes condition. Following VA examination in May 2013, the examiner found no symptoms of obstructive sleep apnea during service. He noted that the Veteran gained 57 pounds since separation. Ultimately, he opined that the diagnosed sleep apnea was less likely than not the result of service-connected diabetes mellitus, as there is no physiologic connection between diabetes and sleep apnea. He stated that the most likely cause of sleep apnea is weight gain. On his June 2014 VA Form 9, the Veteran wrote that his lifestyle had to be altered so that he would not die from diabetes. He described his regulated activities and taking up to 10 shots of insulin each day. He mentioned that a heart condition also affected his activities. The Veteran stated that he has a lack of energy and cannot exercise at all. While he previously playing semi-professional football and led an active lifestyle, he now could not walk more than two blocks. He attributed his weight gain to the change in activities and lifestyle required by his diabetes and heart condition. In May 2017, an addendum VA examination report was prepared. The examiner found no relationship between the diagnosed sleep apnea and the Veteran's service. In a July 2017 letter, Dr. F. described the Veteran's diabetes as quite complex. He stated that the Veteran continues to gain weight because of insulin use. He noted that weight gain over the last two years was aggravating the sleep apnea. The doctor wrote that it is pretty clear that using lots of insulin makes diabetic patients gain weight, which can increase central adiposity, which in turn aggravates sleep apnea. He concluded that, in his professional opinion, it was at least as likely as not that the sleep apnea was related to the diabetes. The Board notes the negative opinions contained in the VA examination reports of record. However, while the May 2013 examiner found no physiologic connection between diabetes and sleep apnea, he stated that the most likely cause of sleep apnea is weight gain. This supports the Veteran's theory that weight gain due to diabetes is the cause of his sleep apnea. Furthermore, the May 2017 examiner explored a potential link between in-service symptoms and sleep apnea, rather than the secondary theory of entitlement put forward by the Veteran. Thus, it is afforded little consideration in this analysis. Instead, the July 2017 private opinion is deemed highly probative. Dr. F. provided a detailed rationale in support of his opinion that the sleep apnea and diabetes are related. Significantly, he stated that using lots of insulin makes diabetic patients gain weight, which can increase central adiposity, which in turn aggravates sleep apnea. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). While there is evidence for and against the claim, the Board resolves doubt in the Veteran's favor and finds that the evidence warrants entitlement to service connection for sleep apnea. The July 2017 opinion from the Veteran's doctor clearly relates the diagnosed sleep apnea to weight gain as a result of service-connected diabetes. Resolving reasonable doubt in the Veteran's favor, the claim of entitlement to service connection for sleep apnea is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.303(b), 3.310. ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs