Citation Nr: 21029320 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-44 860 DATE: May 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (sleep apnea), secondary to service-connected type II diabetes mellitus (diabetes), is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's sleep apnea is secondary to his service-connected diabetes. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, secondary to service-connected diabetes, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303(b), 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to August 1969, including service in the Republic of Vietnam. As such, exposure to herbicides, to include Agent Orange, is presumed. Though this matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office, it was initially addressed in a March 2015 rating decision. Additionally, it was previously remanded by the Board in October 2020. In March 2020, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See March 2020 Board Hearing Transcript. As an initial matter, the Board notes that, as discussed in the October 2020 Board remand, the Veteran has asserted that his sleep apnea is secondary to an acquired psychiatric condition, specifically posttraumatic stress disorder (PTSD). See March 2020 Board Hearing Transcript; June 2020 Correspondence; January 2021 Correspondence. However, the Veteran is not service connected for an acquired psychiatric condition, nor does the claims file indicate that he has sought service connection for such. If the Veteran believes that he has an acquired psychiatric condition, to include PTSD, and that such is related to his active duty service, he is encouraged to file a claim of entitlement to service connection for such condition. Entitlement to service connection for sleep apnea, secondary to service-connected diabetes, is granted. Service connection on a direct basis requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established 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(a). Service connection on a secondary basis may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) a current disability; (2) a service-connected disability; and (3) a medical nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Allen v. Brown, supra. Factual and Procedural Background. In April 2014, the Veteran filed a claim of entitlement to service connection for, inter alia, sleep apnea. See February 2014 VA Form 21-526EZ. In a March 2015 rating decision, the Veteran's claim was denied. Thereafter, the Veteran submitted additional evidence in support of his claim. In an October 2015 rating decision, the Veteran's claim was again denied. Thereafter, the Veteran timely filed a Notice of Disagreement (NOD) in October 2016. The appeal was ultimately perfected in August 2017. The Veteran's service treatment records (STRs) are silent with respect to a diagnosis of or treatment for sleep apnea. See STR-Medical. The Veteran has submitted statements from J.R. and M.R., each asserting that the Veteran did not have sleep problems prior to service, and that they first noticed the Veteran had sleep apnea symptom in 1967. See April 2014 J.R. Lay Statement; April 2014 M.R. Lay Statement; April 2015 M.R. Lay Statement; April 2015 J.R. Lay Statement. The Veteran's private medical records indicate that he was diagnosed with sleep apnea as early as July 2013. See South Atlanta Pulmonary Group records, received December 2020; Atlanta Medical Center records, received December 2020. The Veteran's VA treatment records indicate he has reported use of C-PAP for his sleep apnea since March 2015. See Atlanta VA Medical Center (VAMC) records, received October 2020 in CAPRI. In March 2020, the Veteran testified that his sleep apnea is related to his active duty service, as his sleep apnea is related his diabetes, which is related to in-service herbicide exposure. See March 2020 Board Hearing Transcript. In June 2020, the Veteran submitted a statement asserting that his sleep apnea is secondary to PTSD and diabetes. See June 2020 Correspondence. In June 2020, the Veteran submitted a statement from Dr. J. Ross, his treating physician, opining that his sleep apnea was more likely than not aggravated by his diabetes. No rationale was provided. See June 2020 Private Opinion. In January 2021, a VA opinion was obtained in which the examiner opined that the Veteran's sleep apnea was less likely than not related to his active duty service. In support of this opinion, the examiner acknowledged the lay reports of sleep apnea, but stated that symptoms such as snoring, awakening, gasping, and daytime fatigue are nonspecific complaints with multiple possible causes, and it was unlikely the Veteran could have gone over 45 years without requiring evaluation and intervention. The examiner also noted that there is no current evidence in medical literature to support Agent Orange as a cause of sleep apnea. The examiner also opined that the Veteran's sleep apnea was less likely than not caused or aggravated by a service-connected condition, to include diabetes. In support of this opinion, the examiner stated there is no physiologic or anatomic mechanism by which any of his service-connected conditions can impact or cause sleep apnea. See January 2021 VA Medical Opinion DBQ. In March 2021, the Veteran submitted correspondence from Dr. J. Ross, in support of the physician's June 2020 etiological opinion. In this correspondence, the physician stated that diabetes results in an increase in neck circumference, and an increased neck size is a risk factor for sleep apnea. In support of these statements, the physician provided two articles, titled "Neck Size One Risk Factor for Obstructive Sleep Apnea," and "Neck Circumference in Relation to Glycemic Parameters: A Systemic Review and Meta-Analysis of Observational Studies." See March 2021 Correspondence. Analysis. The Veteran contends that his sleep apnea is secondary to his service-connected diabetes. As noted above, the Veteran has been diagnosed with sleep apnea. See South Atlanta Pulmonary Group records; Atlanta Medical Center records; Atlanta VAMC records. As such, the first element of service connection on both direct and secondary bases has been met. See Shedden v. Principi, supra; Wallin v. West, supra. With respect to service connection on a direct basis, a review of the Veteran's STRs does not reveal any diagnosis of or treatment for a sleep condition. See STR-Medical. The Veteran does not argue to the contrary. Rather, the Veteran argues that his sleep apnea is related to his service-connected diabetes. See March 2020 Board Hearing Transcript; June 2020 Correspondence. The Board acknowledges that the Veteran has submitted lay statements from his brothers asserting that his sleep apnea began in 1967. These statements do not describe any observed symptoms, but rather simply that they noticed the Veteran had sleep apnea in 1967. See April 2014 J.R. Lay Statement; April 2014 M.R. Lay Statement; April 2015 M.R. Lay Statement; April 2015 J.R. Lay Statement. However, while the Veteran's brothers would be competent to report observable symptoms, there is no evidence that either brother has the specific medical expertise needed to render a competent opinion on the specialized, complex medical issues that are the subject of this appeal, such as the etiology of a sleep apnea condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, as discussed above, the Veteran does not contend that his sleep apnea began in service, but rather that his sleep apnea is related to his service-connected diabetes. As the competent and credible evidence of record is against a finding that the Veteran had an in-service event or injury relating to the Veteran's sleep apnea, the second element of service connection on a direct basis has not been met. See Shedden v. Principi, supra. Therefore, any discussion of a medical nexus for direct service connection is not warranted. With respect to service connection on a secondary basis, the Veteran is service connected for diabetes; thus, the second element is met. See Wallin v. West, supra. The remaining question is whether there is a medical nexus between the Veteran's service-connected diabetes and his diagnosed sleep apnea. Weighing in favor of a medical nexus, in June 2020, the Veteran submitted a statement from Dr. J. Ross, his treating physician, opining that his sleep apnea was more likely than not aggravated by his diabetes. In March 2021, the Veteran submitted correspondence from Dr. J. Ross supporting the June 2020 etiological opinion. In this correspondence, the physician stated that diabetes results in an increase in neck circumference, and an increased neck size is a risk factor for sleep apnea. In support of these statements, the physician provided two articles, titled "Neck Size One Risk Factor for Obstructive Sleep Apnea," and "Neck Circumference in Relation to Glycemic Parameters: A Systemic Review and Meta-Analysis of Observational Studies." See June 2020 Private Opinion: March 2021 Correspondence. Weighing against a medical nexus, in January 2021, a VA opinion was obtained in which the examiner opined that the Veteran's sleep apnea was less likely than not caused or aggravated by a service-connected condition, to include diabetes. In support of this opinion, the examiner stated there is no physiologic or anatomic mechanism by which any of his service-connected conditions can impact or cause sleep apnea. See January 2021 VA Medical Opinion DBQ. However, the examiner did not cite any specific medical literature to support the conclusion that there is no physiological or anatomic mechanism by which any of his service-connected conditions can impact or cause sleep apnea, but rather noted that literature review included Up-to-Date. Therefore, the Board finds this to be conclusory, and as such, inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, as noted above, the Veteran's private physician has submitted two articles that discuss the relationship between diabetes and neck circumference, and the relationship between neck size and sleep apnea. See March 2021 Correspondence. As such, the examiner's opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Considering the foregoing, the Board finds that the evidence of record overall supports the finding that the Veteran's sleep apnea is secondary to his service-connected sleep apnea, at least to an evidentiary position of equipoise. As such, the benefit of the doubt will be conferred in the Veteran's favor and his claim for service connection for sleep apnea, secondary to service-connected diabetes, is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.