Citation Nr: A22002832 Decision Date: 02/17/22 Archive Date: 02/17/22 DOCKET NO. 211002-188655 DATE: February 17, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is GRANTED. FINDING OF FACT In May 2021, the Veteran's submitted a nexus statement from a physician's assistant, which identified a positive etiological relationship between the current OSA and service-connected disabilities. CONCLUSION OF LAW The criteria for secondary service connection for obstructive sleep apnea (OSA) have been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from February 1981 to February 2001. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. In June 2021, the Veteran submitted a VA Form 20-0995. Thereby, the Veteran renewed the final denial on his claim for service-connection for obstructive sleep apnea (OSA). Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The 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). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In December 2020, a notation was generated at the Tampa VA Medical Clinic (VAMC). Therein, obstructive sleep apnea (OSA) was included on the Veteran's active problems list. In May 2021, the Veteran submitted a statement. Therein, the Veteran relayed that he had endured sleep apnea for more than 20 years. The Veteran also described the symptoms and impact that accompanied his OSA. In June 2021, a statement from the Veteran's spouse was associated with the claims file. Therein, the registered nurse / spouse relayed that the Veteran had endured issues with his breathing and sinuses since 1990. The spouse relayed that, "I was so alarmed at the frequency of OSA that I videotape him sleeping." In May 2021, a statement from a physician's assistant was associated with the claims file. Therein, after extensive review of the medical evidence and literature, the provider relayed that it was at least as likely as not that the Veteran's OSA had a secondary relationship to the service-connected chronic sinusitis. The provider relayed that it was at least as likely as not that the Veterans service-connected bilateral knee disabilities and chronic sinusitis / rhinitis disabilities precipitated weight gain as an "intermediate step" that contributed to the Veteran's current OSA. The examiner relayed that, "it is at least likely as not that (the) service connected sinus / rhinitis conditions, bilateral knee conditions causing chronic pain, and allergy/sinus medications have contributed in some aspect to (the Veteran's) weight gain and his current obesity, which may precipitate and / or aggravate OSA." In July 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured sleep apnea disability. Afterward, the examiner noted a February 2021 diagnosis for OSA. The examiner opined that the Veteran's OSA was at least as likely as not (50 percent probability or greater) incurred during the Veteran's duty in the U.S. Air Force. The examiner relayed that, "(t)he medical literature supports the relation between oropharynx inflammation and increased risk for obstructive sleep apnea, as well as, the increased risk for sleep apnea due to high exposure to particulate matter. A nexus has been established." However, in a September 2021 addendum, the nurse practitioner that provided the July 2021 opinion to address ambiguities in her prior opinion. She opined that notation that the Veteran's sleep apnea was at least as likely as not caused by service to be done in error. She corrected her response to state that sleep apnea was less likely than not incurred in service or caused by an inservice injury, event, or illness. She noted that the Veterans snoring, unrestful sleep, gasping, trouble sleeping, and insomnia were "not pathognomonic for sleep apnea." In December 2021, the Veteran submitted a VA Form 20-0996. Therein, the Veteran clarified that his claim for service connection OSA was secondary to chronic sinusitis. The Veteran relayed that the OSA claim was incorrectly denied previously on a direct basis. After review of the claims file, the Board observes that the Veteran is service connected for the following disabilities: headaches, right shoulder condition, tinnitus, recurrent sinusitis, pseudofolliculitis barbe, neck scar, lumbar arthritis, bilateral knee disabilities, GERD, bilateral hearing loss, a pilonidal cyst scar, and allergic rhinitis. After deliberate review of the claims file, the Board observes that the Veteran maintains a current diagnosis for OSA. Additionally, the Veteran is currently service-connected for a chronic sinusitis disability as well as bilateral knee disabilities. Consequently, the first and second requisite elements for secondary service connection have been substantiated by the evidence of record. See Wallin, 11 Vet. App. at 512; Reiber, Vet. App. at 516-17. Moreover, the appellate record indicates that the Veteran's OSA is secondary to service-connected disability. While there is conflict between the medical opinion submitted by the Veteran and the medical opinion obtained by the AOJ regarding whether the Veteran's OSA is secondary to sinusitis, the Board observes that the private opinion also attributed the Veteran's OSA to weight gain and obesity resulting from his inability to exercise due to service connected disability. The Board notes that neither the July 2021 nor September 2021 VA opinions address whether OSA resulted from obesity due to service connected disability. Consequently, the final requisite element for secondary service connection has been substantiated. See id. Ultimately, the Board finds that the evidence favors the Veteran's secondary service connection claim for OSA. Accordingly, his claim for service connection is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.