Citation Nr: 21002415 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 08-17 567 DATE: January 13, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT It is as likely as not, if not more likely, the Veteran’s OSA is proximately due to or aggravated by his service-connected deviated septum. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for the OSA as secondary to his service-connected deviated septum. 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 had active military service from January 1972 to April 1977. In March 2018, the Board denied this claim, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In December 2018, pursuant to agreement in a Joint Motion for Remand (JMR), the Court vacated the Board’s decision denying this claim and remanded it back to the Board for further development and readjudication. And, in August 2019, in furtherance of this, the Board, in turn, remanded the claim back to the Agency of Original Jurisdiction (AOJ). On remand, however, the claim continued to be denied, so it is again before the Board for further appellate consideration. The Veteran recently testified in support of this claim during another hearing before this Board in November 2020. The undersigned Veterans Law Judge presided, and a transcript of the proceeding since has been associated with the claims file, so is of record. Service connection for OSA is granted. The Veteran contends that his OSA was caused or is aggravated by the deviated septum he has owing to injuries sustained in a motor vehicle accident (MVA) during his service when his face hit the dashboard resulting in a broken nose and concussion. He contends that he resultantly underwent corrective surgery (rhinoplasty) in January 1977, and that in the years since – including not relatively long after, he was told that he had developed probable sleep apnea. He further contends that, following his service, in the early 1980s and 1990s when he underwent various surgeries such as for an appendectomy and then neck surgery, he was told that he snored during the surgery and, thus, again, that he might have sleep apnea. So, he traces this disorder all the way back to his service.   The evidence of record confirms the Veteran underwent a rhinoplasty while in service in January 1977. The evidence also shows a diagnosis of OSA more recently in January 2007. In March 2013, his VA treating physician submitted a supporting medical opinion surmising that the OSA could have been caused by the deviated septum and resultant rhinoplasty. The Board places significant probative weight on this supporting medical nexus opinion, as the physician noted a review of the Veteran’s treatment records and was familiar with his clinical history. This physician’s opinion lends credence to the Veteran’s contentions regarding the history of his OSA, even predating the eventual diagnosis mentioned. By the same token, the Board also has considered the VA medical opinion provided in January 2014 that conversely is against the claim – finding instead that it is less likely than not the Veteran’s OSA is proximately due to his deviated septum. However, while this VA examiner concluded that the Veteran’s OSA was most likely related to his weight, this VA examiner did not discuss the Veteran’s statements on examination or in the record. In that regard, he stated to the examiner that his spouse had noticed him snoring and gasping for breath since the 1977 septoplasty. He also reported, and the examiner noted, that at that time the Veteran weighed significantly less than he did by the time of that examination. It therefore is unclear why the examiner did not discuss this evidence provided on examination and as is consistently noted in the record. Given that failing, the Board finds the opinion to be less probative or at least as probative as the March 2013 opinion contrarily supporting the claim. The same is the case with the more recent December 2019 VA opinion obtained on remand, essentially making the same determination as in January 2014 that the Veteran’s OSA is likely related to his weight rather than to his deviated septum. Again, though, neither examiner concluding against the claim discussed the Veteran’s report of gaining weight following an on-the-job accident in the early 2000s, so at his civilian employment, and his consistent reports of being told prior to his weight gain as a result of that injury that he had snored during earlier surgery and might have sleep apnea even before that incident at his civilian job. Moreover, neither VA examiner provided an adequate opinion as to whether the Veteran’s deviated septum alternatively aggravates his OSA. This is significant because two opinions are required in secondary service connection claims – addressing both potential causation and aggravation. See 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Consequently, at the very least, the Board finds that the evidence is in relative equipoise, meaning as supportive of the claim as it is against it. And, accordingly, in this circumstance the Veteran is given the benefit of the doubt and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). He has provided credible testimony supporting his claim, and he is competent to report the medical history that has been recounted. Moreover, the March 2013 supporting medical opinion when compared alongside the January 2014 and December 2019 VA opinions against the claim ultimately are of similar probative value. While the March 2013 private opinion did not provide any more rationale than did the contrary January 2014 and December 2019 opinions, it did importantly consider the Veteran’s reported clinical history, whereas the VA opinions did not appear to take this into account and reconcile discrepancies concerning the Veteran’s weight at one time versus another. Therefore, ultimately, as the evidence is at least in equipoise, service connection for OSA is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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.