Citation Nr: 21005757 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-67 759 DATE: February 2, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected constrictive bronchiolitis is granted. FINDING OF FACT The Veteran’s OSA is a result of his service-connected constrictive bronchiolitis. CONCLUSION OF LAW The criteria for service connection for OSA as secondary to constrictive bronchiolitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 2005, to September 2005, September 2007 to July 2008, from August 2011 to May 2012, and from October 2013 to November 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in July 2020. Entitlement to service connection for OSA, to include as secondary to service-connected constrictive bronchiolitis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran asserts that his sleep apnea is related to active service. Although the Veteran has not asserted a secondary service connection theory of entitlement, the Board is required to consider all theories of entitlement reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence). The Veteran submitted a July 2020 private medical opinion that indicated the Veteran’s OSA was caused by his service-connected constrictive bronchiolitis. Thus, the Board is considering a secondary theory of entitlement for the Veteran's sleep apnea as it was raised by the evidence of record. The Veteran’s medical records show he has a current diagnosis of OSA and is currently service connected for, among others, constrictive bronchiolitis. VA provided the Veteran an examination in October 2017 to determine the nature an etiology of his OSA. The October 2017 examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by his active duty service. The examiner reasoned the Veteran’s service treatment records did not contain an OSA diagnosis and his “gasping,” snoring, and “trouble sleeping” are not specifically characteristics of or indicative of OSA. The examiner noted the most common risk factors for OSA but did not explain how the risk factors apply to the Veteran’s specific situation nor provide any additional rationale. The Board finds this examination to be of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). VA provided the Veteran a subsequent examination in November 2017 to determine whether his OSA was due to Gulf War environmental hazards or exposure to burn pits. The November 2017 examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by Gulf War environmental hazards or burn pits. The examiner again noted the most common risk factors for OSA but did not provide any rationale as how these risk factors apply to the Veteran’s specific circumstances. The Board finds this examination to be of no probative value. Id The Veteran provided a positive private medical opinion in July 2020 by Dr. W.F. Dr. W.F. opined that the Veteran’s OSA is due to his chronic obstructive pulmonary disease (COPD); however, the Veteran is not service connected for COPD but rather for constrictive bronchiolitis. During the July 2020 hearing, the Veteran’s representative indicated the Veteran’s constrictive bronchiolitis is a recognized subset of COPD and requested additional time to obtain a medical opinion from Dr. W.F. to clarify the Veteran’s unique circumstances and diagnoses. In July 2020, Dr. W.F affirmed the Veteran’s constrictive bronchiolitis diagnosis and clarified the relationship between the Veteran’s constrictive bronchiolitis and COPD, noting that COPD is a more general term that would encompass the Veteran’s specific type of constrictive bronchiolitis. Dr. W.F. provided a positive nexus opinion relating the Veteran’s OSA to his service-connected constrictive bronchiolitis. The Board finds the two July 2020 medical opinions to be highly probative and affords them significant weight. The July 2020 examiner has treated the Veteran for several years, reviewed applicable medical journals, and provided a well-reasoned and detailed explanation while specifically considering the Veteran’s unique circumstances. Id. There is no other medical nexus opinion of record that addresses secondary service connection. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current OSA is due to his service-connected constrictive bronchiolitis. Accordingly, after resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds that service connection for OSA is warranted as secondary to service-connected constrictive bronchiolitis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.