Citation Nr: A19002033 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190403-7816 DATE: October 17, 2019 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected sinusitis and allergic rhinitis, is granted. FINDINGS OF FACT 1. A final regional office (agency of original jurisdiction or AOJ) decision dated October 2016 denied service connection for obstructive sleep apnea (OSA) on the basis that OSA was not shown to be caused or aggravated by a service-connected disability. 2. Evidence added to the record since the October 2016 AOJ rating decision is new and relevant as it includes a new medical examination and previously unconsidered private medical opinion regarding the link between OSA and the Veteran’s service-connected disabilities. 3. The Veteran’s service-connected sinusitis and allergic rhinitis have aggravated his diagnosed obstructive sleep apnea beyond its normal progression. CONCLUSIONS OF LAW 1. The October 2016 AOJ decision denying service connection for OSA is final. 38 U.S.C. § 7105(c); 38 C.F.R. § § 20.302, 20.1103. 2. The criteria for reopening the service connection claim for OSA have been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § § 3.156(a), 3.159. 3. The criteria for entitlement to service connection for OSA, to include as secondary to service-connected sinusitis and allergic rhinitis, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1978 to February 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision of a Department of Veterans Affairs (VA) regional office (AOJ). The Veteran was originally denied service connection for OSA in a March 2016 rating decision. The Veteran submitted new evidence within a year of the decision and the AOJ continued the denial in a reconsideration decision dated October 2016. The Veteran was notified of this decision, and his appellate rights, by letter dated October 11, 2016. This decision was not appealed, and new and material evidence, was not received, within the statutory time limit and became final. 38 U.S.C. § 7105(c); 38 C.F.R. § § 20.302, 20.1103. The Veteran’s attempt to reopen the claim for service connection of OSA was denied in an August 2018 AOJ decision on the basis that the evidence submitted was not new and material. The Veteran was afforded a new VA examination for OSA in December 2018. The AOJ revisited the matter in a February 2019 rating decision and continued the denial, stating that the evidence from the examination failed to relate to an unestablished fact and did not raise a reasonable possibility of substantiating the claim. In April 2019, the Veteran appealed the claim directly to the Board, resubmitting several medical treatises, a private medical opinion, previous Board decisions and submitting a new private medical opinion. The Board finds that both the December 2018 VA examination and the private medical opinion constitute new and relevant evidence that tends to prove or disprove a matter in issue: specifically, the relationship between the Veteran’s OSA and his service-connected disabilities. The Board notes that the Veteran submitted a new letter from a private physician with his appeal paperwork, but since the Veteran opted for “Direct Review by a Veterans Law Judge” on his appeal form, the Board is precluded from taking this evidence into account as it was unavailable to the AOJ at the time of the last rating decision. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.300). Filing a Supplemental Claim is not necessary in this case since the benefit sought is being granted in full. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected sinusitis and allergic rhinitis, In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (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). Service connection may also be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran was first diagnosed with a “sleep disturbance” in November 2006. However, it was not until December 2014 that the Veteran underwent a sleep study and was definitively diagnosed with OSA. The Veteran is currently service-connected for both chronic sinusitis and allergic rhinitis from March 2001, his separation from service. Medical records indicate that the Veteran uses nasal inhalers and receives weekly injections for his allergic rhinitis and has been prescribed a CPAP machine for his OSA. Medical records also indicate that the Veteran has a deviated septum and had surgery on his sinuses in March 2007. The Veteran claims that his service-connected sinusitis and allergic rhinitis contribute to his OSA. During his December 2018 VA examination, the Veteran stated that he believes has had OSA since 1988 and has always had problems going to and staying asleep. The December 2018 VA examiner opined that the Veteran’s OSA was less likely than not (less than 50 percent probability) proximately due to his service-connected conditions, stating that the most common cause of sleep apnea is excess weight and obesity and that the Veteran has a body mass index of 31.5 when a rating over 30 is usually considered obese. However, the examiner also opined that it was at least as likely as not that the Veteran’s OSA was aggravated beyond its natural progression by his service-connected conditions, stating “it is reasonable to opine that inflamed sinuses due to chronic sinusitis and inflamed nares due to allergic rhinitis, all involved in the mechanics of breathing, may cause an aggravation to the Veteran’s sleep apnea.” The Veteran submitted an April 2016 letter from his private physician stating: “I have reviewed [the Veteran’s] medical record and in my opinion, it is more likely that [his] sleep apnea is secondary to his service connected Chronic Sinusitis and Allergic Rhinitis. I base my opinion on this because [he] had a long history of suffering with these conditions. Sinus infection, allergies and other causes of nasal obstruction can make breathing difficult at night, anything that causes you to breathe through your mouth prevents your nose from warming, filtering and moistening the air you breathe and can result in a high level of sleep disturbance. When you breathe through your mouth at night as [the Veteran] does, your jaw and tongue can fall back and block your airway, causing increased likelihood of sleep apnea and snoring. Sleep problems are common in people who have Chronic Sinusitis and Allergic Rhinitis. [The Veteran] suffers from nasal obstruction daily. Sinusitis and nasal obstruction can worsen obstructive sleep apnea, [he] underwent unsuccessful sinus surgery in March 2007; he started taking 2 Allergic Rhinitis shots per week in August 2012 to present; he’s currently taking Claritin and utilizing Nasonex spray. He is required to use a breathing assistance device such as continuous airway pressure (CPAP) machine.” Conversely, a February 2016 VA examiner opined that the Veteran’s OSA was less likely than not proximately due to or the result of his service-connected sinusitis and rhinitis. The examiner noted that the Veteran’s sleep study physician recommended weight management in treating his OSA and that chronic sinusitis is not listed as a risk factor for OSA. The Board is most persuaded by both the April 2016 private physician and December 2018 VA examiner’s opinions that the Veteran’s OSA is secondary to and aggravated by his service-connected sinusitis and allergic rhinitis. The Board notes that the February 2016 opinion failed to discuss the Veteran’s allergic rhinitis or to address whether this or his sinusitis aggravated his OSA beyond its normal progression. Therefore, the Board assigns little probative weight to this opinion. On the other hand, the private physician and December 2018 VA examiner considered the Veteran’s other breathing disorders as well as the treatment they require before making their respective opinions. While the medical opinions disagree whether the Veteran’s OSA is caused by his sinusitis and rhinitis, the United States Court of Appeals for Veterans Claims (CAVC) has observed that the benefit of the doubt rule does not require a medical principle to have reached the level of scientific consensus to support a claim for veterans’ benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt standard reflects the nation’s recognition of debt to our veterans and has assumed the risk of error in awarding benefits to the veteran). The Board is satisfied that the two more probative medical opinions both agree on a secondary connection between the Veteran’s OSA and his service-connected disabilities. Therefore, based on the totality of the evidence and affording the Veteran the benefit of all reasonable doubt, the Board finds that the Veteran’s current OSA disability is causally related to service and conditions incurred therein. As such, he is entitled to a grant of service connection for obstructive sleep apnea. The Board notes that the Veteran requested an earlier effective date for the award of service connection for sleep apnea. This issue is downstream from the service connection claim, and the Board has no jurisdiction to address this issue at this time. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Schumacher, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.