Citation Nr: A25004792 Decision Date: 01/21/25 Archive Date: 01/21/25 DOCKET NO. 230327-334499 DATE: January 21, 2025 ORDER Entitlement to service connection for Wolff-Parkinson-White syndrome (heart disability), as secondary to service connected obstructive sleep apnea (OSA), is granted. Entitlement to service connection for diabetes mellitus, type II, as secondary to service connected OSA, is granted. Entitlement to service connection for the residuals of stroke, as secondary to service connected OSA, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his heart disability is caused by his service connected OSA. 2. Resolving reasonable doubt in favor of the Veteran, his diabetes mellitus, type II, is caused by his service connected OSA. 3. Resolving reasonable doubt in favor of the Veteran, his stroke residuals are caused by his service connected OSA. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disability as secondary to service connected OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for diabetes mellitus, type II, as secondary to service connected OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for the residuals of stroke as secondary to service connected OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from September 1988 to February 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2023 Appeals Modernization Act (AMA) rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). The March 2023 rating decision favorably found that new and relevant evidence warranted readjudication of the Veteran's claims and denied them on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c) (absent clear and unmistakable error, favorable findings made by the AOJ are binding on the Board). In his March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims decided herein, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that it has thoroughly reviewed the evidence of record in conjunction with this case. However, the Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Thus, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. 1. Entitlement to service connection for heart disability, as secondary to service connected OSA, is granted. 2. Entitlement to service connection for diabetes mellitus, type II, as secondary to service connected OSA, is granted. 3. Entitlement to service connection for the residuals of stroke, as secondary to service connected OSA, is granted. The Veteran seeks service connection for heart, diabetes mellitus type II, and the residuals of stroke disabilities and contends that they were caused by his service connected OSA. See March 2022 VA Form 21-526EZ, Application for Compensation; March 2022 VA Form 21-4138, Statement in Support of Claim; and March 2022 and September VA Forms 20-0995, Supplemental Applications for Compensation. Service connection may be granted for a disability that is due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Secondary service connection is warranted for any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service connected disability, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The March 2023 rating decision on appeal includes favorable findings that the Veteran has diagnoses of heart, diabetes mellitus type II, and the residuals of stroke disabilities. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c); Allen, 7 Vet. App. at 448. The question now is whether the evidence shows that his diagnosed disabilities were either caused by or aggravated by his service-connected OSA. In support of his claims of entitlement to service connection, the Veteran submitted a September 2022 private medical opinion. See September 2022 Medical Treatment Record Non-Government Facility (September 2022 Private Medical Opinion). Therein, the private physician opined that the Veteran's heart, diabetes mellitus type II, and the residuals of stroke disabilities were caused by his service connected OSA. As a result of the Veteran's March 2022 and September 2022 claims of entitlement to service connection, the Veteran has been afforded VA medical opinions. See May 2022, August 2022, September 2022, January 2023, and March 2023 C&P Exams (May 2022, August 2022, September 2022, December 2022, and March 2023 Medical Opinion Disability Benefits Questionnaires (DBQs)). These opinions, however, can be said to be at best of equal probative value. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In this case, the September 2022 private medical opinion places the evidence of record in, at the very least, approximate balance as to whether secondary service connection is warranted. Moreover, there are no sufficient bases for the Board to reject the supportive opinion and further develop the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Hart v. Mansfield, 21 Vet. App. 505 (2007); Mariano v. Principi, 17, Vet. App. 305, 312 (2003) (VA has a duty to assist a claimant in the development of his or her case but may not undertake additional development if the purpose of such development is to obtain evidence against the claim). As the evidence of record is in approximate balance, the Board resolves reasonable doubt in favor of the Veteran and finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (the benefit-of-the-doubt rule applies if the competing evidence is in approximate balance). His claims of entitlement to service connection for heart, diabetes mellitus type II, and the residuals of stroke disabilities as secondary to OSA are granted. DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buntin, M.E. 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.