Citation Nr: 21012880 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-33 215 DATE: March 5, 2021 ORDER Entitlement to service connection for sleep apnea as a secondary to the service-connected disease or injury is denied. FINDINGS OF FACT Veteran’s sleep apnea is unrelated (causation or aggravation) to service connected disease or injury. CONCLUSION OF LAW Sleep apnea is not proximately due to or a result of or aggravated by a service connected disease or injury. 38 C.F.R. § 3.310.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the US Air Force on active duty from August 1983 to February 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014, rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that his sleep apnea is secondary to his service-connected bronchial asthma with rhinitis. The evidence of record does not show that he has any sleep apnea disability related to any remaining service-connected diseases or injuries. Pertinent Legal Criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not for consideration. Similarly, the record does not raise the theory of direct service connection. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-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 and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. 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. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). Secondary Service Connection The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the evidence is against a finding that the sleep apnea is due to or aggravated by his bronchial asthma with rhinitis or any service connected disease or injury and service connection is therefore not warranted on a secondary basis. Secondary service-connection to bronchial asthma with rhinitis A VA medical examination was provided to the Veteran in October 2014 before the rating decision. The examiner opined that it is less likely than not that Veteran’s currently claimed obstructive sleep apnea (OSA) is caused by or aggravated beyond its normal course by bronchial asthmas with rhinitis. The examiner conducted physical examination and cited literature that disclosed that allergic rhinitis aggravates the symptoms of OSA, but do not cause it nor change the course of the disease process. In a subsequent notice of disagreement (NOD) Veteran argued that there are theories that he has found on the internet and libraries that allude that allergies and asthma are directly related to sleep apnea. Veteran argues that these studies suggest that asthma may contribute to the onset of sleep apnea. Veteran provided service medical records indicating severe allergies and asthma during his active service. Veteran specifically mentioned during 1970 to 1973 that he was given allergy shots 3 times weekly and proscribed asthma medication on a continual basis. These service records were from the allergy clinic and not previously part of the record at the time the VA medical examination was issued. On September 2018, Veteran submitted an appellate brief arguing that the Agency of Original Jurisdiction (AOJ) erred when it denied entitlement to service connection for OSA. Veteran argued that the medications that were given to him for his asthma had resulted in weight gain making Veteran obese. The Veteran further argued that the obesity caused by the medications is what caused his sleep apnea. On November 2018, the Board issued a remand to receive an opinion to address Veteran’s contentions on his asthma medications causing or aggravating his sleep apnea. A VA medical examination was provided to the Veteran on August 2019. The VA medical examiner opinioned that Veterans obstructive sleep apnea is less likely than not caused by or aggravated by his medication prescribed for his service-connected asthma. The examiner opined that the medications did not contribute to weight gain and that Veteran’s overweight status was steadily increasing over time. Further the examiner concluded that Veteran was overweight, but not obese. The examiner explained that asthma in itself does not cause people to gain weight, but that Veteran’s excessive caloric intake is the likely cause of him being overweight. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement of sleep apnea as secondary to a service-connected disease or injury. The benefit sought on appeals are accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.