Citation Nr: 21022652 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-45 219 DATE: April 16, 2021 ORDER Entitlement to service connection for obstructive sleep apnea on a direct basis is granted. FINDING OF FACT Resolving all reasonable doubt, the Veteran's obstructive sleep apnea onset during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea on a direct basis have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army Reserves from December 1988 to November 2014. He served on active duty from January 1989 to July 1989, from October 1990 to May 1991, from March 1992 to August 1992, from February 2003 to May 2003, and from March 2008 to April 2009. This appeal arose from an August 2012 rating decision. In September 2018 and August 2020, the Board remanded the issue on this current appeal, along with the claim for service connection for hypertension, for further evidentiary development. In February 2021, the Agency of Original Jurisdiction (AOJ) granted service connection for hypertension. Where a claim for service connection is granted during the pendency of an appeal, a second NOD must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability. Granthan v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). To date, the Veteran has not filed a subsequent NOD with regard to either of these downstream issues. Thus, no matter pertaining to the Veteran’s now service-connected hypertension remains before the Board for appellate consideration at this time. Service connection for obstructive sleep apnea, to include as secondary to a service-connected disability The Veteran is seeking service connection for obstructive sleep apnea. He contends that obstructive sleep apnea began during his active service. A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). The evidence of the record establishes that the Veteran has a current diagnosis of obstructive sleep apnea. As to an in-service injury or event, the Veteran contends that he began experiencing symptoms of sleep apnea during deployment in 2009. In this regard, the Board notes that the evidence of the record suggests that the Veteran’s obstructive sleep apnea may be related to some of his service-connected conditions, specifically PTSD, cervical spine condition, and hypertension. See May 2011 Primary Care Attending Note (April 2013 VA Medical Treatment Records [CAPRI]); May 2014 and August 2020 VA Examination Reports for PTSD. Indeed, service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Regarding whether there is a nexus, in October 2019, the VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was due to his active service. In so concluding, the examiner reasoned that there were no findings of sleep apnea in the service treatment records. The examiner also opined that the Veteran’s sleep apnea was less likely than not caused or aggravated by his service-connected PTSD. In particular, the examiner explained that PTSD and its relation to the obstructive sleep apnea is “as of yet unclear.” The examiner also opined that the Veteran’s cervical strain would not in and of itself lead to obstructive sleep apnea and that there are no findings in the medical record to support a relation. The examiner continued that hypertension was not a well-known clinical risk factor and that a causative link has not been established for sleep apnea. The examiner stated that there were no findings in the medical record supportive of a finding that hypertension was the cause of the Veteran’s sleep apnea. The Board remanded the claim to obtain addendum opinions. New medical opinions were obtained in January 2021. Regarding whether there was a direct nexus, the VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was related to his service. The examiner stated that sleep apnea tends to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyles, body habitus, sinus conditions, upper respiratory conditions, and neurologic deficiencies or idiopathies. The examiner concluded that there was no direct causality or any medical literature directly linking in-service injuries, events, or disease to the Veteran’s sleep apnea. Unfortunately, this opinion is not responsive to the medical question regarding the relationship between the Veteran’s sleep apnea and his service. Importantly, the examiner does not address the Veteran’s assertion of experiencing symptoms, such as snoring, during his deployment in 2009. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, the examiner indicated that sleep apnea was multifactorial and listed those factors but did not apply those factors to the particulars of the Veteran’s case. Regarding secondary service connection, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused, or aggravated, by his service-connected PTSD and cervical spine condition. Regarding causation, the examiner reiterated that, because sleep apnea is multifactorial, there is no direct causality of PTSD or cervical strain leading to, or causing, sleep apnea. Regarding aggravation, the examiner stated that there were no progressive complaints showing aggravation of sleep apnea due to PTSD or cervical strain—or records showing a nexus between these conditions. Unfortunately, these opinions addressing secondary service connection are also deficit. Again, the examiner states the general factors of sleep apnea without applying them to the particulars of the Veteran’s case. Also, the examiner relies on the absence of medical documentation regarding complaints of aggravation or a link between the conditions. These rationales are insufficient in this matter. As stated previously, there is medical evidence of the record to suggest a possible relationship between these conditions. The examiner does not specifically discuss the evidence of the record and reconcile those findings with the resulting conclusion. As a result, the Board gives very low probative value to the January 2021 addendum medical opinions. The Board acknowledges the Veteran’s assertion that he began experiencing symptoms such as snoring and sleeping difficulties while deployed in 2009. Further, in a September 2007 Primary Care Attending Note (regarding past medical history), sleep apnea was noted. It was stated that the Veteran was taking Nasacort. The problem list in December 2009 noted sleep apnea as well. In January 2010, a sleep study was conducted, and the Veteran was diagnosed with mild sleep apnea. A CPAP was ordered, and a notation was made that the Veteran would be scheduled in the sleep apnea clinic. See September 2011 VAMC Other Output/Reports. Of significant and probative note, the last period of the Veteran’s active service was from March 2008 to April 2009. After a thorough consideration of the evidence of the record, the Board finds that the evidence is in relative equipoise regarding whether the Veteran’s obstructive sleep apnea developed during his active service. His reports of experiencing symptoms in service, in conjunction with treatment records documenting a history of sleep apnea and reflecting a diagnosis of sleep apnea within one year of separation from active duty service, nonetheless raises a reasonable doubt as to the initial onset of the Veteran’s sleep apnea. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's obstructive sleep apnea is related to his service. Accordingly, the Board determines that the criteria for service connection have been met and that entitlement to service connection for obstructive sleep apnea is warranted. As the Board is herein granting service connection for obstructive sleep apnea on a direct basis (the greater benefit when compared to the matter of secondary service connection), the Board need not address the theory of entitlement to service connection for this disability on a secondary basis. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.