Citation Nr: 22022983 Decision Date: 04/19/22 Archive Date: 04/19/22 DOCKET NO. 16-44 561 DATE: April 19, 2022 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypothyroidism, is granted. FINDING OF FACT The evidence of record is at least in approximate balance as to whether the Veteran's sleep apnea was incurred as secondary to his service-connected hypothyroidism. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea as secondary to hypothyroidism have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1962 to January 1967, from January 1969 to October 1978, and from January 1982 to January 1988, as well as in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a VA Regional Office (RO). The Veteran testified before one Veterans Law Judge (VLJ) in February 2019, and the case was then remanded by the Board in a March 2019 decision. The Veteran testified before a second VLJ in August 2020. Generally, VLJs who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three VLJs. See 38 U.S.C. § 7102(a). Thus, when a Veteran has had a personal hearing before two separate VLJs during the appeal, and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held, and the appeal is then ready for appellate review. The United States Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that a Veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In this case, during the August 2020 Board hearing, the Veteran was asked if he wished to waive his right to a third hearing, and the Veteran agreed to waive his right. In October 2020, the Board proceeded to adjudicate the claims on appeal and denied service connection for osteoarthritis and sleep apnea. Subsequently, the Veteran appealed the denial of his claim for service connection for sleep apnea to the United States Court of Appeals for Veterans Claims (Court/CAVC). He did not appeal his claim for osteoarthritis. In a May 2021 decision, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's October 2020 decision, and remanded the matter to the Board for action consistent with the ruling. The claim is now once again before the Board. The Veteran asserts that his sleep apnea arose during or as a result of his active service, including as secondary to his service-connected hypothyroidism. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Veteran's STRs are negative for diagnosis or treatment for sleep apnea. His September 1987 pre-discharge medical examination and Report of Medical History are negative for any sleep-related issues. The Veteran's VA and private treatment records are negative for complaints, treatment, or diagnosis of sleep apnea in the 12-month period immediately following service or for medical opinions linking the Veteran's sleep apnea to his active service. The Veteran's VA treatment records do reflect chronic complaints of trouble sleeping due to pain. See, e.g., July 2001, September 2002, October 2004, and May 2005 VA treatment records. An April 2006 sleep study found evidence of sleep apnea. Sleep apnea is noted as an active problem in an August 2007 treatment record. A July 2015 sleep study also reflects a diagnosis for sleep apnea. The Veteran filed a claim for service connection for sleep apnea in April 2014. In his January 2015 Notice of Disagreement (NOD), the Veteran asserted that he experienced sleep apnea during active service, but neither he nor his physicians were aware of the medical condition. During the February 2019 Board hearing, the Veteran and his representative asserted that he began experiencing excessive daytime sleepiness and snoring during active service in the mid to late 1970s. In the report of the Veteran's April 2020 VA examination for sleep apnea, the examiner stated that sleep apnea was diagnosed in 2006 after an April 2006 sleep study. The Veteran reported the onset of sleep apnea as being during the 1980s during active duty, and the examiner noted the Veteran's description of his medical history and sleep apnea symptoms was convincing. In an accompanying medical opinion, the examiner opined that the Veteran's condition less likely than not arose during or as a result of his active service. The examiner noted that the Veteran's account of his medical history was convincing. However, there was insufficient objective evidence of sleep apnea until 2006. Consequently, the examiner found it more likely that the Veteran's condition began numerous years after service. During the August 2020 Board hearing, the Veteran and his representative asserted that the Veteran's sleep apnea began during service. He reported being consistently tired and snoring heavily during service. The representative also argued that records from Fort Meade documented treatment and diagnosis for sleep apnea in 1992 or during the 1990s. In an April 2022 medical opinion, a private otolaryngologist opined that the Veteran's sleep apnea was at least as likely as not secondary to his service-connected hypothyroidism, with obesity as an intermediary condition. The opinion's author indicated that they had reviewed the Veteran's claims file and provided a lengthy and detailed rationale supporting their opinion. This rationale contains citations to scientific studies addressing the causal role of obesity. Consequently, the Board lends this opinion significant probative weight. It was indicated that a precedential opinion by VA's General Counsel, VAOPGCPREC 1-2017, noted that obesity may not be service connected in and of itself, but that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). In an April 2022 Appellate Brief, the Veteran's representative argued that the evidence of record, especially with the addition of the April 2022 medical opinion, was sufficient to justify granting his claim for service connection. In this case, the Board finds a basis for secondary service connection, predicated on causation. The April 2022 private examiner opined that his condition was at least as likely as not secondary to the Veteran's service-connected hypothyroidism, with obesity as an intermediate step. Accordingly, the benefit of the doubt will be afforded to the Veteran; therefore, the claim for service connection for sleep apnea, as secondary to service-connected hypothyroidism, is granted. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.