Citation Nr: 22015609 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 19-26 225 DATE: March 18, 2022 ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to service-connected chronic kidney disease, 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 chronic kidney disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, as secondary to service-connected chronic kidney disease, are 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 had active service from March 1970 to December 1990. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in June 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. Entitlement to service connection for obstructive sleep apnea. The Veteran seeks entitlement to service connection for obstructive sleep apnea. He has asserted several theories of entitlement, to include direct and secondary. Because the Board is granting this claim on a secondary basis due to causation, direct service connection will not be discussed in this decision. Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See 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 must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant).). The Veteran has a current diagnosis of obstructive sleep apnea. See May 2018 VA examination. As such, element (1) set forth under Allen, current disability, has been satisfied for each appeal. The Veteran is service connected for chronic kidney disease, effective April 2016. See July 2016 rating decision. In September 2018, the Veteran submitted a medical opinion from his treating physician. The physician opined that the Veteran's obstructive sleep apnea was at least as likely as not caused by his chronic kidney disease. The physician stated that chronic kidney disease can cause obstructive sleep apnea, explaining that there is an increased prevalence of obstructive sleep apnea in patients with chronic kidney disease and dialysis seems to improve obstructive sleep apnea. Therefore, the physician opined that obstructive sleep apnea can be linked with the Veteran's chronic kidney disease, which is a service-connected disability. The physician then cited to a medical journal article and a copy of the article was submitted with the opinion. The medical article discussed by the Veteran's treating physician is from the Journal of Clinical Sleep Medicine, and titled "Obstructive Sleep Apnea and Kidney Disease: A Potential Bidirectional Relationship?" As indicated by the private physician, the article states that the prevalence of obstructive sleep apnea is much greater in patients with chronic kidney disease and that aggressive dialysis improves obstructive sleep apnea. The article indicates that the current literature suggests a bidirectional association between chronic kidney disease and obstructive sleep apnea through a number of potential pathological mechanisms, which increase the possibility of both diseases being possible risk factors for each other. Continuing, the article explains that chronic kidney disease may lead to obstructive sleep apnea through a variety of mechanisms, including alterations in chemoreflex responsiveness, pharyngeal narrowing due to fluid overload, and accumulation of uremic toxins. In response to the private medical opinion, the RO obtained a VA medical opinion in July 2019. The VA examiner opined it was less likely than not that the Veteran's chronic kidney disease caused his obstructive sleep apnea. The examiner stated that the opinion expressed by the private physician indicated the Veteran's sleep apnea coexists with his service-related conditions and does not support causation. Continuing, the VA examiner stated that the journal article cited by the private physician only suggests an association and does not establish causation. The Board finds that the evidence is at least in equipoise that the Veteran's obstructive sleep apnea is proximately due to his service-connected chronic kidney disease. The Board finds the private medical opinion is at least as probative and persuasive as the VA opinion. The private physician included a rationale with the opinion and cited to a medical article that explained the relationship between the Veteran's service-connected chronic kidney disease and his obstructive sleep apnea. Furthermore, while the July 2019 VA examiner stated the journal article does not support causation, the Board notes that the article explains that chronic kidney disease may lead to obstructive sleep apnea through a variety of mechanisms, including alterations in chemoreflex responsiveness, pharyngeal narrowing due to fluid overload, and accumulation of uremic toxins and also indicated that chronic kidney disease is a risk factor for obstructive sleep apnea. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). The Board acknowledges there are inadequacies in both the private and VA medical opinions obtained. However, 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 chronic kidney disease. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.