Citation Nr: 21063675 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-23 133A DATE: October 15, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to service-connected Parkinson's disease is granted. FINDING OF FACT The Veteran has been shown to have current obstructive sleep apnea that is secondary to or aggravated by his service-connected Parkinson's disease. CONCLUSION OF LAW Obstructive sleep apnea is proximately due to, the result of, or aggravated by a service-connected Parkinson's disease. 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 from February 1967 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing is of record. The Board remanded the case for additional development in May 2019. That development has been completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had also originally included the issue of entitlement to chronic obstructive pulmonary disease (COPD). However, following the remand, the agency of original jurisdiction (AOJ) granted that claim in a September 2020 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that matter is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for obstructive sleep apnea. As noted in the prior remand, the Veteran has contended that his sleep apnea was the result of his military service or service-connected disabilities. He has offered multiple theories of entitlement, including in-service complaints and treatment as early manifestations of the disorder, herbicide (Agent Orange) exposure, and hazardous materials exposure from in-service duties and from being stationed at Naval Air Station (NAS) Moffett Field, as well as a relationship between the claimed disorder and his service-connected Barrett's esophagus, GERD, and Parkinson's disease. See, e.g., August 2018 Bd. Hrg. Tr.; written statements from June 2013, April 2014, July 2015, August 2015 (substantive appeal), September 2015, and July 2016. The Veteran specifically asserted that his sleep apnea is affected by his service-connected gastrointestinal disorders and Parkinson's disease because he is losing his motility for swallowing, which has caused him to choke when he falls asleep if he is not raised. His representative indicated that this obstruction of his airway and difficulty swallowing is what causes the apnea movements in the Veteran's sleep and submitted articles in September 2015 discussing a relationship between GERD and sleep. It is noted that the Veteran's difficulty chewing/swallowing has been service-connected as part of his Parkinson's disease (evaluated with the Barrett's esophagus). See, e.g., August 2018 Bd. Hrg. Tr.; April 2013 VA treatment record; written statements from June 2013, April 2014, August 2015 (substantive appeal), and July 2016 Following the remand, an additional VA medical opinion was obtained in July 2020. Although the examiner provided a negative nexus opinion for most of the theories of entitlement, he did opine that the Veteran's obstructive sleep apnea is at least as likely as not secondary to and/or aggravated by his service-connected Parkinson's disease. He explained that sleep-related problems are one of the most prevalent nonmotor symptoms (NMS) with Parkinson's disease, affecting 48 to 82 percent of patients and increasing with the disease severity. It was noted that obstructive sleep apnea (OSA) is common and is thought to occur in 20 to 60% of patients with Parkinson's disease patients. The examiner also cited to medical literature in support of his opinion. The Board does note that the July 2020 VA examiner stated that it was not possible to establish a baseline without resort to speculation due to the current limitations of medical knowledge. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Nevertheless, the July 2020 VA examiner clearly stated that the Veteran's obstructive disability was "secondary to and/or aggravated" by his service-connected Parkinson's disease, and he provided adequate rationale in support of his opinion with citation to relevant medical literature. The examiner's inability to determine the baseline level of severity does not change the fact that the examiner did not find that Veteran's obstructive sleep apnea is secondary to his service-connected Parkinson's disease. Moreover, 38 C.F.R. § 3.310(b) further provides that the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Thus, to the extent that a baseline determination is needed, the agency of original jurisdiction (AOJ) would have the responsibility to make that finding prior to assigning an initial rating. Accordingly, the Board finds that service connection for sleep apnea is warranted on a secondary basis. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.