Citation Nr: 21023859 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-51 226 DATE: April 21, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran’s OSA is secondary to his service-connected type two diabetes mellitus. See March 2021 Private Medical Opinion. CONCLUSION OF LAW The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the Navy from March 1951 to March 1955, April 1955 to January 1961, January 1961 to December 1966, December 1966 to September 1972, and September 1972 to March 1974. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board previously denied the claim on appeal, in an August 2019 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted the parties’ joint motion for remand (JMR), vacating the Board’s decision on the grounds that the Board improperly relied on a March 2018 VA medical nexus opinion, which was inadequate since it rested on a finding contrary to the facts of record. Namely, the March 2018 VA opinion stated that the Veteran had no diagnosis of OSA until March 2014, whereas the record reflects an impression of OSA in June 1999 following a sleep study. The Court remanded the case for action in accord with the JMR, which stated that the case should be remanded by the Board to afford the Veteran a new VA medical nexus opinion. Since the time of the CAVC’s remand, the Veteran has submitted a March 2021 private medical nexus opinion which concludes that the Veteran’s OSA is secondary to his service-connected type two diabetes mellitus. The Board finds herein that service connection for OSA is warranted on the basis of this opinion, and therefore a further remand to provide an additional VA medical nexus opinion is not warranted, since the claim is granted in full and there is no prejudice to the Veteran in foregoing a remand at this time. Entitlement to Service Connection for OSA Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that 1) a current disability exists, and 2) the current disability was either a) caused by or b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Here, the Veteran has contended that his OSA had its onset in service. However, as noted above, the Board finds that his OSA is secondary to his service-connected diabetes. As this fact is sufficient grounds for service connection for OSA—a full grant of the benefit sought on appeal—the question of whether the Veteran’s OSA had its onset in service is moot, and the Board does not consider it herein. The Veteran has been afforded one VA medical nexus opinion during the claim period, in March 2018, and he has submitted a March 2021 private medical nexus opinion in support of his claim. The March 2018 VA opinion concluded that the Veteran’s OSA 1) was not incurred in service, 2) did not result from another injury or disease incurred in service, and 3) was not caused or aggravated by the Veteran’s service-connected prostate cancer or by treatment therefor. The examiner rendered no opinion as to whether the Veteran’s OSA was secondary to his service-connected diabetes. Following the Board’s August 2019 denial and the CAVC’s July 2020 remand, the Veteran submitted a March 2021 private medical nexus opinion which concluded that the Veteran’s OSA was secondary to his service-connected diabetes. The private opinion cited to a host of studies demonstrating a relationship between type two diabetes mellitus and OSA—in particular that diabetes can cause OSA. For example, the opinion pointed to research showing that glycemic control improvement “significantly reduces the increased number of nocturnal oxygen desaturations” occurring in patients with type two diabetes mellitus. In other words, OSA improved with treatment for diabetes, suggesting that diabetes was causing OSA. Regarding the Veteran himself, the opinion observed that the Veteran was considered obese at the time of a February 2004 sleep study which yielded no finding of OSA, suggesting that his OSA is not caused by his obesity. Therefore, the opinion concluded that the Veteran’s OSA was likely secondary to his service-connected diabetes. The conclusion of the March 2021 private medical nexus opinion is competent, credible, and entitled to significant weight. Moreover, there is no evidence to the contrary. Therefore, the Board finds that the Veteran’s OSA is secondary to his service-connected type two diabetes mellitus. Accordingly, service connection for OSA is warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.