Citation Nr: 21028418 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-16 639 DATE: May 11, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to degenerative disc disease of the cervical spine is granted. REMANDED Entitlement to an initial compensable rating for pinguecula is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the current sleep apnea was caused by the service-connected degenerative disc disease of the cervical spine with osteophytic formations. CONCLUSION OF LAW The criteria to establish service connection for sleep apnea as secondary to service-connected degenerative disc disease of the cervical spine are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to December 1984. He had subsequent periods of service in the Reserves. In a May 2018 decision, the Board denied claims for service connection for sleep apnea and increased rating for a cervical spine disability. The Board remanded the issue of initial compensable rating for pinguecula. The Veteran timely appealed the denial of the claim for service connection for sleep apnea to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not appeal the denial of increased rating for a cervical spine disability. In a January 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the denial of service connection for sleep apnea. Lastly, the in 2018, the Board also remanded the issue of entitlement to service connection for a lumbar spine disability; however, in a March 2020 rating decision, the RO granted the claim. This grant is considered a full grant of the benefits sought on appeal and this issue is no longer in appellate status. Service Connection for Sleep Apnea Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities and the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). The record must also contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran asserts that his sleep apnea is secondary to the service-connected cervical spine disability. The Veteran submitted an article reviewing literature discussing the relationship between the cervical spine and sleep apnea. The article highlighted instances where disabilities of the cervical spine, including misalignment, rheumatoid arthritic lesions, osteochondromas, and large osteophytes, may have affected the upper airway and thus contributed to the development of sleep apnea. The Veteran underwent a VA sleep apnea examination in June 2016. The Veteran complained of frequent daytime sleepiness and the need for naps, and reported that he was waiting to receive a CPAP machine from VA. The examiner noted that the Veteran was a normal weight. The examiner opined that the sleep apnea was less likely than not proximately due to the degenerative disc disease of the cervical spine, as a specific etiology of the sleep apnea was not known. This examiner did not provide any detailed rationale for the conclusion, or address whether the cervical spine disability aggravated the sleep apnea beyond its natural progress. For those reasons, the opinion is inadequate and of no probative value. An additional VA opinion was obtained in April 2017 and the examiner also determined that the sleep apnea is less likely than not caused by or proximately due to the degenerative disc disease of the cervical spine, as sleep apnea is a multi-factorial disease, with risk factors including age, weight, sex, race, family history, and use of tobacco and alcohol. The examiner noted that obstructive sleep apnea is most commonly caused by old age, brain injury, and decreased muscle tone. The examiner compared the Veteran's medical history with the cases noted in the article submitted by the Veteran, and noted that spondylosis was not mentioned in the article as one of the factors involving the cervical spine that may contribute to the development of sleep apnea. The examiner further concluded that, given the later onset of sleep apnea compared with his cervical spine injury and the many known possible causes of sleep apnea, it is less likely than not that the service-connected cervical spine disability caused or aggravated by the sleep apnea. The examiner reasoned that the Veteran's sleep apnea was not diagnosed until 2015, and as such, was not caused or aggravated by the service-connected cervical spine disability. Regarding the medical article submitted by the Veteran, the examiner concluded that it did not list cervical spondylosis as a risk factor for sleep apnea. However, the Board assigns little to no probative weight to this VA opinion. First, the examiner's indication that sleep problems were not noted until 2015 is factually incorrect. Notably, already in March 2008, private treatment records showed reports of sleep problems with an assessment of sleep apnea. Second, the examiner dismissed the medical literature yet failed to even consider the fact that the Veteran was not only diagnosed with cervical spondylosis but also with cervical osteophytic formations. Accordingly, to the extent that the April 2017 examiner misstated the Veteran's medical history, the opinion is for little to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). Evidence favorable to the claim includes a January 2017 private medical opinion authored by R.W.G., D.C., who is identified as a Doctor of Chiropractic care. He stated that, in his opinion, the state of the Veteran's cervical spine is more likely than not directly related to the obstructive sleep apnea. The chiropractor based this conclusion on the Veteran's record of chronic misalignment of the C1-C2 vertebrae and degenerative disc disease of C6-C7 vertebrae, as well as the cervical osteophytic formations identified in July 2016 x-rays. R.W.G. noted that recent research links cervical osteophytic formations, which the Veteran has, to sleep apnea. On review, the Board finds that the private opinion is adequate, competent and of probative value. In forming his opinion, the chiropractor relied on the accurate facts in this case, and provided fully-articulated and supported by the evidence of record, to include related medical research. Indeed, the chiropractor related the applied his research to the facts of the instant case. In sum, the Board concludes that the probative medical evidence is this case supports the claim. Resolving all doubt in the Veteran's favor, service connection on a secondary basis is granted. REASONS FOR REMAND This issue is not yet ready for appellate consideration. A remand is necessary for the RO to readjudicate the claim in light of new relevant VA evidence, which was added to the claims file without a waiver of Agency of Original Jurisdiction (AOJ) initial consideration. In this regard, the record shows that the RO issues a supplemental statement of the case (SSOC) in December 2020; subsequently however, a March 2021 eye conditions compensation examination was associated with the claims file, with no subsequent SSOC. To-date, neither the Veteran nor his representative submitted a waiver of AOJ consideration. Therefore, the Board may not consider the evidence in the first instance. 38 C.F.R. § 20.1304(c) (2020). The matters are REMANDED for the following action: (Continued on the next page) 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, readjudicate the claim for an initial compensable rating for pinguecula on appeal while ensuring that all evidence added to the file after the last RO adjudication is considered. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.