Citation Nr: 21041115 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-40 101 DATE: July 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to service-connected allergic rhinitis, is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's obstructive sleep apnea is proximately due to his service-connected allergic rhinitis. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, as secondary to service-connected allergic rhinitis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1983 to October 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied service connection for obstructive sleep apnea. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Allowing a July 2019 Joint Motion for Partial Remand, the Court vacated the December 2018 Board decision and remanded that issue to the Board. In January 2020 and October 2020, the Board remanded this claim to the Agency of Original Jurisdiction for additional development. Entitlement to service connection for obstructive sleep apnea, as due to service-connected allergic rhinitis, is granted. The Veteran seeks service connection for obstructive sleep apnea, which he contends had onset during his active service, to include as due to in-service exposure to asbestos and smoke from burning documents. Alternatively, he contends that his obstructive sleep apnea was proximately caused or aggravated beyond its natural progression by his service-connected allergic rhinitis. Service connection may be established for a disability that is proximately due to or the result of a service-connected disability, or for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board concludes that the Veteran has a current sleep apnea disability that is due to his service-connected allergic rhinitis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Because the Board is granting this claim on a secondary basis based on causality, it will not discuss direct service connection in this section. March 2015 private treatment records show the Veteran has a current diagnosis of severe obstructive sleep apnea syndrome. As such, element (1) set forth under Allen, current disability, has been satisfied. The Veteran is currently service connected for allergic rhinitis. See December 2020 rating decision. Regarding the question of whether the Veteran's obstructive sleep apnea is proximately due to his service-connected allergic rhinitis, there are probative opinions in favor of and against the claim. The evidence in favor of the claim includes an April 2020 VA medical opinion. The examiner, a physician, opined that the Veteran's obstructive sleep apnea is at least as likely as not (50 percent or greater probability) due to his allergic rhinitis. The examiner reasoned that the Veteran has a current diagnosis of obstructive sleep apnea and service treatment records from November 1983 showed a diagnosis of allergic rhinitis. Therefore, it was at least as likely as not that the Veteran's sleep apnea was proximately due to the allergic rhinitis. The examiner cited an article from 2009, that demonstrated allergic rhinitis and non-allergic rhinitis are risk factors for a high apnea-hypopnea index, and both can predispose to sleep apnea. The evidence against the claim includes a March 2021 VA medical opinion. The examiner opined that the Veteran's obstructive sleep apnea is less likely than not caused by the Veteran's allergic rhinitis and/or exposure to asbestos and burning documents. The examiner's rational was that "due to the lack of a pathophysiological relationship between allergic rhinitis and asbestos exposure, and the development of sleep apnea, it is unlikely that the Veteran's allergic rhinitis and asbestos exposure caused his sleep apnea." However, the examiner did not address the clinical research cited by the April 2020 VA examiner finding that allergic rhinitis can predispose to sleep apnea. Because the examiner failed to address probative evidence, the Board finds the March 2021 VA medical opinion has limited probative value. In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. Accordingly, the Board finds that element (2) under Allen, nexus, has been satisfied and the appeal for entitlement to service connection for obstructive sleep apnea is granted, as proximately due to his service-connected allergic rhinitis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.