Citation Nr: 21077400
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 17-22 343
DATE: December 29, 2021

REMAND

Entitlement to service connection for sleep apnea, to include as secondary to service-connected allergic rhinitis, is remanded.

REASON FOR REMAND

The Veteran served on active duty from March 1968 to October 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the record.

The claim was remanded in March 2021.

The Veteran contends that he has sleep apnea that is related to service or is alternatively secondary to his service-connected allergic rhinitis.  See, e.g., the September 2020 Board hearing transcript, page 2.  Further, during the September 2020 Board hearing, the Veteran appeared to indicate that his sleep apnea is due to exposure to herbicides, ionizing radiation, and asbestos during service.

After Board remand and consideration of journal articles that the Veteran had submitted, another opinion was issued in October 2021.  In that opinion, the examiner stated that sleep apnea is a structural disease characterized by recurrent collapse of the pharyngeal airway during sleep, resulting in reduced or complete cessation of the airflow, which results in disturbance in the gas exchange.  The examiner stated that after reviewing the articles discussing the relationship between rhinitis and the development of sleep apnea, allergic rhinitis does not physically result in the recurrent collapse of the pharyngeal airways during sleep.  Also, unlike allergic rhinitis, sleep apnea is not an immune mediated disorder.  The examiner stated that if sleep apnea were an immune mediated disorder then treatments such as CPAP would not help and would not be considered a first line treatment. Therefore, the examiner concluded, that there was insufficient evidence to establish a nexus, with a greater than 50 percent probability, that the Veteran's sleep apnea was caused or aggravated by his service-connected allergic rhinitis.  

The examiner used an incorrect standard.  The question is whether it is at least as likely as not (50 percent or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected allergic rhinitis.  Accordingly, a remand is necessary to obtain an opinion using the correct standard.

The matter is remanded for the following action:

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Obtain an addendum to the October 2021 VA opinion.  The examiner should address whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's sleep apnea is (i) caused or (ii) aggravated by his service-connected allergic rhinitis.  Please explain why or why not.

The examiner is advised that the question is whether it is at least as likely as not (50 percent or greater probability).

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nadia Kamal, 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.