Citation Nr: 21020951 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-15 176 DATE: April 8, 2021 ORDER Service connection for obstructive sleep apnea (OSA) as secondary to a service-connected deviated nasal septum is granted. FINDING OF FACT The Veteran’s OSA is/was aggravated by his service-connected deviated nasal septum. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to a service-connected deviated nasal septum have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to August 1983. This matter comes on appeal to the Board of Veterans’ Appeals (Board) from an August 2010 rating decision. In June 2018, the Veteran testified before the undersigned, and a transcript is of record. This matter was previously before the Board in September 2018 and September 2020. Service connection for OSA as secondary to a service-connected deviated nasal septum is granted. The Veteran asserts that his OSA is related to his active service or that it was caused or aggravated by his service-connected traumatic brain injury (TBI) and/or deviated nasal septum. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During service in December 1981, the Veteran reported being kicked and hit in the head for 12 hours. He was shown to have significant right periorbital edema and a deviated nasal septum. A post-service July 1985 VA examination report shows that the Veteran complained of breathing problems through his nose. In a written statement dated January 18, 2006, the Veteran stated that he was having a hard time breathing and snoring because of his deviated septum. On VA ENT examination in February 2006, the Veteran reported that he had started snoring recently. The examiner stated that the Veteran’s “sleep disordered breathing including snoring is at least as likely as not caused by the nasal obstruction which is created by the severe septal deviation following the nasal trauma and fracture.” On VA Sleep Apnea examination in November 2017, the Veteran stated that he had been diagnosed as having sleep apnea 10 years ago. The examiner, upon reviewing the February 2006 examiner’s statement, stated: “That opinion must be granted great deference, but it is limited. There is no evidence that the diagnosis of obstructive sleep apnea (OSA) was known to the examiner, and I do not construe the opinion as including OSA. Nasal obstruction is generally recognized as a risk factor for OSA, but the length of time between the veteran's injury and the development of symptoms, the mildness of his symptoms, and the patency of one of the nasal airways casts considerable doubt on a causal relationship.” In June 2019, a VA examiner stated that at that time there was insufficient evidence to make a determination as to whether the Veteran had obstructive sleep apnea. There were no available records documenting a prior polysomnogram. Therefore, a sleep study was ordered. The examiner stated that obstructive sleep apnea is caused by occlusion of the upper airway during sleep, as a result of collapse of the pharyngeal structures surrounding the airway. It is not due to nasal obstruction. Moreover, according to the Veteran his sleep problems did not begin in earnest until decades after his nasal injury. This indicates that his sleep difficulty, whatever his diagnosis may be, was less likely than not incurred in or caused by the trauma during service. Further, the examiner stated that there was a lack of evidence to suggest that the Veteran has obstructive sleep apnea that was aggravated by his traumatic deviated septum as he did not have a diagnosis of obstructive sleep apnea. If a diagnosis of OSA is confirmed, the examiner stated that it would still be unlikely that it has been aggravated by nasal trauma, as OSA is a result of collapse of the pharyngeal structures surrounding the airway, not due to nasal structures. Following a home sleep study, VA treatment records show that in September 2019 the Veteran was diagnosed as having likely mild, supine-only sleep apnea, although the study was insufficient for a conclusive diagnosis. A diagnostic polysomnography in October 2019 revealed overall normal AHI with elevated AHI noted in the supine position only which does not meet accepted criteria for diagnosis of obstructive sleep apnea. In July 2020, a VA examiner reviewed the additional evidence and concluded that it did not change the results of the previously submitted DBQ and medical opinions from June 2019. An October 2020 sleep study showed mild to moderate supine positional OSA. Following the September 2020 Board remand, in January 2021, VA opinions were obtained. The Veteran reported the onset of sleep apnea as around 1990. For direct service connection, the examiner stated that although there are service treatment records showing that the Veteran sustained a head trauma in during service in December 1981 where he sustained significant trauma injuries to his right side of the face, X-rays taken at time showed that the face was intact and there were no signs of abnormalities. The examiner noted no other evidence in the medical records that the Veteran was having symptoms of sleep apnea during his service. The examiner stated that medical literature shows that the most common causes of obstructive sleep apnea patterns occur due to an obstruction at the upper airway level such as the tongue or the soft palate. There is no up-to-date medical literature that mentions deviated septum to be a causal factor of obstructive sleep apnea. The examiner concluded that given the lack of service treatment records and objective evidence to show the onset of symptoms attributable to obstructive sleep apnea during the Veteran's service, and also the lack of evidence from medical literature to show that deviated septum can cause obstructive sleep apnea, it is less likely than not (less than 50 percent probability) that the Veteran's claimed sleep apnea was incurred in or caused by the claimed in-service trauma to the head/face on December 1981. For secondary service connection, the examiner found no up-to-date medical literature mentioning a TBI or deviated septum as causal factors of OSA. However, the examiner stated that there is some research showing that a deviated septum can aggravate a pre-existing condition of sleep apnea due to the breathing difficulties. The examiner went on to state that it was less likely than not that the Veteran's sleep apnea was aggravated by his service-connected deviated septum, traumatic, but this opinion was based upon the examiner’s erroneous assumption that obstructive sleep apnea would have to pre-exist service in order to be aggravated by the deviated septum which was incurred in service. The Veteran does not assert, nor does the evidence show, that he had symptoms of sleep apnea during service. Rather, the Veteran reported the onset of his symptoms of sleep apnea after service, in either 1990 or 2006. He reported that he was fist diagnosed as having sleep apnea in 2006. There is no medical evidence relating the Veteran’s sleep apnea to any incident of service. To the contrary, the VA examiners have all concluded, most notably in January 2021, that his sleep apnea is not related to his in-service facial/head trauma. Thus, the preponderance of the evidence is against entitlement to service connection for sleep apnea on a direct basis. While a February 2006 VA examiner stated that the Veteran’s “sleep disordered breathing including snoring is at least as likely as not caused by the nasal obstruction which is created by the severe septal deviation following the nasal trauma and fracture,” the examiner did not discuss sleep apnea or provide any opinion about sleep apnea. Thus, this opinion lacks probative value. On the other hand, the January 2021 VA examiner concluded in a well-reasoned opinion that the Veteran’s sleep apnea was not caused by his service-connected deviated septum or TBI. Thus, the preponderance of the evidence is against entitlement to service connection for sleep apnea on a secondary basis as caused by service-connected deviated septum or TBI. (Continued on the next page)   The January 2021 VA examiner also stated that there is some research showing that a deviated septum can aggravate a pre-existing condition of sleep apnea due to the breathing difficulties. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s sleep apnea is/was aggravated by his service-connected deviated nasal septum. Therefore, service connection for sleep apnea on a secondary basis as aggravated by service-connected deviated septum is granted. 38 C.F.R. §§ 3.102, 3.310(b). P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denton, Buck 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.