Citation Nr: 20006331 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 17-17 419 DATE: January 28, 2020 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The preponderance of the medical evidence of record weighs in favor for finding that the Veteran’s sleep apnea is proximately due to or aggravated by his service-connected sinusitis. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from July 1989 to February 1995. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision from the San Diego, CA, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing is associated with the claims file. This is the only issue on appeal. The Veteran asserts that he has experienced long-standing symptoms of sleep apnea since service and contends that his sleep apnea is proximately due to or aggravated by his service-connected sinusitis. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board concludes that the Veteran has a current disability that is related to active service and is proximately due to or aggravated by the Veteran’s service-connected sinusitis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), 3.310. October 2014 VA treatment records show the Veteran has a current diagnosis of sleep apnea. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes an April 2016 VA examination. The examiner reviewed the available records and claims file but did not perform an in-person examination. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by an in-service injury, event or illness, or proximately due to or the result of the Veteran’s service-connected sinusitis. In reaching their rationale, the examiner highlights a difference of 19 years from when the Veteran was discharged from service and his sleep apnea diagnosis. The examiner also notes the difference in weight from discharge and how obesity is a significant factor for sleep apnea. After considering a buddy statement indicating snoring and apnea events, the examiner attributed the duration of time between discharge and diagnosis and the significant weight gain as reasons why it is unlikely the Veteran had sleep apnea in service. In addition, the examiner stated they could not find medical literature supporting a causal relationship between sinusitis and sleep apnea. The evidence in favor of the claim includes numerous positive nexus statements. The first positive opinion was provided by a Certified Respiratory Care Practitioner in April 2015. The practitioner opined that the Veteran’s sleep apnea is more likely than not aggravated by his service-connected sinusitis and based the rationale on knowledge and experience working as a Respiratory Therapist, as sleep apnea can be aggravated by sinusitis. Another positive opinion, dated October 2016, was from a treating physician who referred the Veteran to be tested for sleep apnea. In a short letter, the physician wrote that the Veteran’s sleep apnea is at least as likely as not related to an injury, disease, or event occurring during the Veteran’s military service. For the rationale, the physician stated that the Veteran’s chronic sinusitis, if not the cause, contributes to his sleep apnea. Two independent expert medical opinions were provided. The first expert reviewed the Veteran’s claims file, pertinent recent medical literature and interviewed the Veteran in November 2019. The independent expert D.A. opined that it is more likely than not that the Veteran’s sleep apnea is caused by and/or aggravated by his service-connected sinusitis. To support their rationale, the independent expert cited to medical literature and explained how the Veteran’s sinusitis causes nasal obstruction. Furthermore, nasal obstruction has been shown to increase the propensity for the upper airway to collapse and notes that a small reduction in the diameter of the upper airway will cause a collapse of the upper airway during sleep. The second medical expert reviewed the Veteran’s medical records and current medical literature, providing a report in November 2019. The independent expert K.C. opined that it is at least as likely as not that the Veteran’s sleep apnea is secondary to his service-connected sinusitis. To support their rationale, the independent expert cited to medical literature and detailed the role that nasal pathology plays in the severity of sleep apnea symptoms. Moreover, the independent expert also addressed the issue of weight, as there is no indication that weight gain played a role in the development of the Veteran’s sleep apnea. Upon review of the record, the Board finds significant evidence in support of the Veteran’s claim. Therefore, the evidence is found to be at least be in equipoise as to whether the Veteran’s current sleep apnea is proximately due to/aggravated beyond its natural progression by his service-connected sinusitis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.