Citation Nr: 1436209 Decision Date: 08/13/14 Archive Date: 08/20/14 DOCKET NO. 10-07 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected sinusitis or hypertension. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 7, 1974, to October 4, 1974, and from February 1983 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in September 2011. A copy of the hearing transcript is of record. In February 2013, the Board remanded the Veteran's claim for additional development. The requested development has been completed and the matter has returned to the Board for further appellate consideration. FINDING OF FACT The Veteran has sleep apnea that is aggravated by his service-connected sinusitis. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to the service-connected sinusitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. As the Board is granting the claim for service connection for sleep apnea as secondary to his service-connected sinusitis, the duty to notify and assist need not be further considered. II. Analysis The Veteran seeks service connection for sleep apnea, to include as secondary to his service-connected left chronic frontal and maxillary sinusitis and hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. As the Veteran has not been diagnosed with a chronic disease, the tenets of 3.303(b) have not been invoked. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Service connection may be granted where a disability is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (2013). Compensation is payable when a service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Review of the Veteran's service treatment records (STRs) reflect that he had received treatment for seasonal allergies to include rhinitis and sinusitis. He was also treated for hypertension. By an April 2003 rating action, the RO granted service connection for left chronic frontal and maxillary sinusitis and hypertension was granted. Pertinent records include private sleep reports dated in January and February 2009. The January 2009 report reflects mild obstructive sleep as evidenced by the apnea/hypopnea index of 8.6 "which is significant in a patient with hypertension." The February 2009 report included an assessment of obstructive sleep apnea with hypoxemia with need for continuous positive airway pressure (CPAP) trial. In an April 2009 statement, D.A., M.D., related that the Veteran had been diagnosed with obstructive sleep apnea. Dr. D. A. opined that the Veteran's allergic rhinitis, which he had in service, could have contributed to his sleep apnea because of resulting nasal obstruction. Dr. D. A. also opined that it was more likely than not that the Veteran's sleep apnea had its onset while he was on active duty. Additional sleep study was performed in May 2009 by VA with a portable sleep recording device. The conclusion was that this overnight diagnostic portable sleep test did not show evidence of obstructive sleep apnea/hypopnea syndrome. In July 2009, VA examined the Veteran to determine the etiology of his sleep apnea. The VA examiner indicated that he had reviewed the Veteran's claims files prior to the examination. At the examination, the Veteran stated that his allergic rhinitis might have been contributing to his sleep apnea. He snored and had some daytime sleepiness. The VA examiner noted the results of sleep study tests in January and February 2009. The Veteran's height was reported as 5 feet 7 inches tall. He weighed 200 pounds and had a body mass index of 31.3. The examiner's impression was that the Veteran had very, very mild, or perhaps nonexistent sleep apnea because he had no difficulty using a nasal mask and no history of nasal allergic treatment in his recent medical history. The VA examiner opined that it was less likely than not that the Veteran's allergic rhinitis had contributed to his sleep apnea. The VA examiner believed that the Veteran's body mass index "probably had more to do with it as well as his age." In an August 2009 statement, the Veteran maintained that Dr. D. A. did not indicate that his weight or age had anything to do with his sleep apnea. The Veteran argued that the condition was the result of high blood pressure and his sinusitis. He also expressed his dissatisfaction with the May 2009 take home test as it did not measure the output of blood or oxygen and was unmonitored. In September 2009, D.A., M.D. submitted an additional statement. He indicated that the Veteran definitely had been diagnosed with sleep apnea and periodic leg movement disorder and that he was currently being treated for sleep apnea. The Veteran also had chronic allergic rhinitis and a deviated septum that contributed to his snoring and which could contribute to sleep apnea and make it more difficult to treat. Dr. D. A. reiterated his opinion that the Veteran clearly had symptoms of sleep apnea while on active duty, although he did not seek radical diagnosis at that time. He also had allergic rhinitis, recurrent sinusitis, and a deviated septum on active duty. . At the September 2011 hearing, the Veteran testified in support of his claim. He noted that he continued to be seen for sleep apnea at a private facility in Lawton, Oklahoma, about once every six months. He did not feel that his weight had anything to do with his sleep apnea. He indicated that he weighed 176 pounds and was not overweight. The Veteran was afforded two VA examinations in March 2013. At the first examination, the Veteran was assessed with chronic sinusitis and obstructive sleep apnea (OSA). Following a review of the claims files, interview with the Veteran, and completion of a clinical examination, the examiner indicated that OSA is not caused by chronic sinusitis in general. The VA examiner noted, however, that reduced nasal airway patency (whether due to inflammation, rhinitis, septal deviation, or sinusitis) could cause or worsen sleep apnea. The VA examiner opined that the Veteran had anatomical abnormalities in his nose, oral cavity, palate, and oropharynx that explained his sleep apnea. He noted that while the anatomical abnormalities were not caused by chronic sinusitis, the nasal airway obstruction component and therefore OSA symptoms might be worsened when the Veteran's sinusitis was active. He stated that the abnormalities were likely present for as long as the Veteran had significant snoring and predated his retirement from active duty. At the second VA examination in March 2013, the Veteran was again diagnosed with sleep apnea. The examiner reviewed the claims file, interviewed the Veteran, and conducted a clinical evaluation of the Veteran. The examiner concluded that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by service. The examiner noted that there was no evidence of symptomatology consistent with sleep apnea in the STRs and no evidence of symptoms consistent with sleep apnea until six years after active duty. The examiner also concluded that it was less likely than not that sleep apnea was caused or aggravated by the service-connected hypertension based on a review of medical literature. Having reviewed the complete record, particularly the medical opinions discussed above, the Board concludes that service connection for sleep apnea as secondary to the service-connected sinusitis is warranted. The competent medical evidence of record shows that the Veteran's sleep apnea is aggravated by his service-connected sinusitis. The July 2009 VA examiner, as well as the Veteran's private physician, D. A., M. D, discuss the relationship between the Veteran's allergic rhinitis (italics added for emphasis) and his sleep apnea. The Board notes that service connection has not been established for allergic rhinitis, but for left chronic frontal and maxillary sinusitis. (See August 2013 rating action). The first March 2013 VA examiner concluded that the Veteran's symptoms of obstructive sleep apnea were worsened when the Veteran's sinusitis was active. The March 2013 VA examiner provided a complete rationale for the opinion. Consequently, the Board finds that that service connection for sleep apnea is warranted as secondary to the service-connected sinusitis. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the claim for service connection for sleep apnea is being granted, the Board finds that there would be no useful purpose in addressing the theory of direct service connection. ORDER Entitlement to service connection for sleep apnea as secondary to service-connected sinusitis is granted. ____________________________________________ C R. KAMMEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs