Citation Nr: 0307151 Decision Date: 04/14/03 Archive Date: 04/24/03 DOCKET NO. 99-21 985 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to service connection for sleep apnea. ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from April 1966 to March 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1999 RO rating decision which denied direct service connection for sleep apnea, and a subsequent RO decision which denied service connection for sleep apnea secondary to the veteran's service-connected hypertension. A February 2001 Board hearing was cancelled by the veteran. In March 2001, the Board remanded this appeal to the RO for further development. The Board notes that in a September 2002 statement, the veteran raised the issue of entitlement to an increased rating for hypertension. Such issue is not before the Board at this time and has not been considered by the RO. Therefore, such issue is referred to the RO for appropriate action. FINDINGS OF FACT Sleep apnea began years after service and was not caused by any incident of service, and was not caused or worsened by service-connected hypertension. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service, and it is not proximately due to or the result of service- connected hypertension. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty in the Air Force from April 1966 to March 1992. His service medical records indicate that he was treated for hypertension on multiple occasions during service. A September 1975 treatment entry noted that the veteran was seen for frontal pressure, ear congestion, and a frontal headache. He reported that the pain was severe enough to keep him awake. The impression was sinusitis. On a medical history form in October 1991, the veteran checked that he suffered from frequent trouble sleeping. The reviewing examiner noted that the veteran reported that he had frequent trouble sleeping since 1986 when he started taking blood pressure medicines. It was reported that the veteran stated that he would wake up early in the morning and be unable to go back to sleep. The examiner noted that that the veteran indicated that he had received no treatment, that it occurred three to four times a week, and that the last episode was in October 1991. It was also reported that the veteran felt his health was fair due to problems including feeling tired and difficulty sleeping. The remainder of the veteran's service medical records did not refer to sleep problems. The veteran underwent a VA general medical examination in September 1992. The diagnoses included hypertension. There was no reference to a sleep disorder. A September 1992 VA cardiovascular examination report also related a diagnosis of hypertension. Treatment records from the outpatient clinic at Fort Meade, Maryland dated from April 1993 to May 1993 show that the veteran was treated for hypertension. An April 1993 entry noted that the veteran reported that he had difficulty sleeping with his medication. The impression included hypertension. In August 1993, the RO granted service connection for hypertension and assigned a 10 percent rating. The 10 percent rating has remained in effect. Private treatment records dated in March 1998 show that the veteran was treated for sleep apnea. A March 1998 polysomnogram report from the National Capital Sleep Center indicated that the veteran complained of heavy snoring and daytime somnolence. It was noted that he reported that he consumed a large amount of caffeine during the day in order to maintain daytime wakefulness. The report also noted that the veteran had a history of hypertension, that he claimed to have a perforated eardrum, and that he answered positively to many questions relating to depression. The report indicated that in the sleep study, the veteran demonstrated a severe sleep apnea syndrome with borderline daytime pathological somnolence. The diagnosis was sleep apnea syndrome, severe, of obstructive type, with severe oxygen desaturation and borderline pathological daytime somnolence. Treatment records dated from February 1998 to May 1998 from the outpatient clinic at Ft. Meade, show treatment for disorders including sleep apnea. A May 1998 consultation report indicated that the veteran was overweight with obstructive sleep apnea which was documented on a sleep study in April 1998. It was noted that the veteran needed a study to determine if a continuous positive airway pressure (CPAP) device would be appropriate. A May 1998 statement from D. M. Toedt, M.D., a physician at the Internal Medical Clinic at Ft. Meade, noted that the veteran was recently diagnosed with obstructive sleep apnea. Dr. Toedt indicated that the veteran was undertaking treatment which might include weight loss, CPAP, and possibly oral surgery. Dr. Toedt stated that a review of the veteran's active duty medical records revealed that he had complaints about sleep disturbances dating back to 1986 and that he complained of early morning awakening, poor concentration, and daytime somnolence. It was noted that, at that time, the veteran was not overweight. Dr. Toedt commented that sleep apnea was often under-recognized and under-treated and that it was clear that the veteran had sleep apnea while on active duty and that he did not receive an appropriate evaluation of his condition. A May 1998 CPAP titration report from the National Capital Sleep Center noted that a CPAP titration reflected a successful attempt at treatment of the veteran's sleep apnea syndrome. The diagnosis was sleep apnea syndrome under control with a nasal CPAP. In a May 1998 lay statement, the veteran's wife reported that she had witnessed the veteran's daytime sleepiness since they had been married in July 1989. She stated that the veteran would always complain that he could not stay awake after he got off from work and that he would always take a nap before going out with her. The veteran's wife indicated that the veteran would fall asleep on many occasions during visits with friends and that he would also fall asleep at stoplights. She stated that the veteran's extremely loud snoring had kept her awake for the past nine years and that sometimes he would stop breathing. In a May 1998 statement, the veteran reported that he began to feel very fatigued and sleepy during the daytime when he started taking medication for hypertension in November 1989. He stated that he complained to an independent medic that he could not stay awake and that numerous notes were made in the medical records. The veteran indicated that the medic suggested that he take the medication before he went to bed because he also complained of insomnia. He noted that during his time in the service, no physician seemed concerned about his sleepiness and fatigue because he worked long hours. A June 1998 statement from Dr. Toedt noted that the veteran was recently diagnosed with obstructive sleep apnea and that he was undertaking a treatment plan which might include weight loss, CPAP, and possibly oral surgery. Dr. Toedt reported that the veteran was first examined by him for a possibility of sleep apnea in February 1998; that he was seen by an ears, nose, and throat specialist in March 1998; and that a sleep study performed in April 1998 diagnosed severe obstructive sleep apnea. It was also noted that in May 1998, the veteran was found to be a good candidate for CPAP. In a June 1998 statement, R. M. Pumarejo, a staff physician from the pulmonary medicine division at the Naval Medical Center in Bethesda, Maryland, indicated that the veteran was initially evaluated by their staff in May 1998 with a condition of obstructive sleep apnea. In an October 1999 lay statement, the veteran's daughter stated that the veteran suffered from symptoms of sleep apnea which he had suffered from as long as she could remember. She stated that when the veteran stayed over at her house, her husband noticed how easily he fell asleep, that his snoring was exceptionally loud, and that he frequently awoke throughout the night. The veteran's daughter indicated that his condition had become worse over the years and that they were concerned about his health and his ability to perform daily functions. The veteran submitted an April 2000 news release from the National Institutes of Health. The report indicated that people with sleep apnea were at special risk for hypertension according to a study funded by the National Heart, Lung, and Blood Institute. It was noted that data from such study showed that middle-aged and older adults with sleep apnea had a forty-five percent greater risk of hypertension than people without the condition. In a May 2000 statement, a VA physician indicated that the veteran had a diagnosis of hypertension and obstructive sleep apnea since 1998. It was noted that the veteran was currently on CPAP therapy. The physician indicated that the veteran's inadequately controlled hypertension might partially be related to his sleep apnea disorder. In a July 2000 statement, the VA physician reported that the veteran's conditions of hypertension and obstructive sleep apnea were chronic conditions requiring routine monitoring. It was noted that both were identified as permanent conditions. The veteran underwent a VA respiratory examination in September 2002. The examiner noted that he had reviewed the claims folder. The veteran reported that he was diagnosed with hypertension in 1987 and started taking Atenolol. He indicated that he was currently taking Lisinopril and Atenolol for control of hypertension. It was noted that the veteran had a history of chronic sinusitis and used a nasal spray and that there was no history of asthma, bronchitis, pneumonia or shortness of breath. The veteran stated that he had a history of snoring and that he had become increasingly sleepy and almost had an accident in 1998. He reported that he underwent a sleep studying in May 1998 and was diagnosed with obstructive sleep apnea and prescribed CPAP therapy. The veteran noted that he continued to have problems with his blood pressure and that it was poorly controlled. He denied any history of chest pain, angina, shortness of breath or cardiac arrhythmia. The examiner reported that the veteran was 5 feet 8 inches tall and that he weighed 262 pounds. It was noted that the veteran used to weigh 184 at the time of release from active duty. The examiner reported that on examination, the veteran had macroglossia and that his throat was not congested. The veteran's chest was clinically clear to auscultation and percussion and there were no rhonchi, rales, wheezes, or crepitations. The cardiovascular examination showed normal sinus rhythm, normal S1 and S2, no murmur and no gallop. The blood pressure reading was 170/100. The diagnoses were hypertension, poorly controlled, and obstructive sleep apnea, controlled with CPAP, although the veteran still asserted that would feel sleepy during the entire day. As to an impression, the examiner indicated that there was no etiological basis for hypertension causing sleep apnea. The examiner stated that the veteran's sleep apnea had been caused and/or aggravated by his increasing obesity. It was noted that at the time of his release from active duty in 1992, the veteran weighed 184 pounds, that when he was diagnosed with obstructive sleep apnea in 1998, he weighed 240 pounds, and that his present weight was still increasing to 262 pounds. The examiner stated that there was no reference to a sleep disturbance or sleep apnea being diagnosed, evaluated, or treated while the veteran was on active duty. The examiner remarked that the veteran's sleep apnea was most likely related to his morbid obesity. The veteran underwent a VA nose, sinus, larynx, and pharynx examination in October 2002. His chief complaints were drowsiness and sleepiness during the daytime since 1987 as well as very loud snoring since 1980. The veteran also indicated that he was irritable with family members and other people, that he was unable to concentrate, and that he stopped breathing at night. He reported that he weighed 186 pounds in 1992 and the he presently weighed 262 pounds. The veteran also complained of nasal congestion and reported that he used a nasal spray on and off. The examiner reported that the veteran had a short neck which was very fat. Examination of the nose showed no dorsal deformity and no sign of nasal fracture. It was reported that on anterior rhinoscopy, there was mild septal deviation which was more towards that left nostril. The examiner stated that the turbinates seemed to be of normal size and normal appearing mucosa and there seemed to be adequate airway in both nostrils. The examiner noted that the ethmoidal area and middle turbinate looked to be without any gross pathology like polyps or acute infection. As to examination of the oral cavity, the examiner indicated that the veteran's tongue looked larger than the normal size and the pharyngeal passages seemed to be compromised overall due to the veteran's overall weight and larger tongue. The diagnoses were severe obstructive sleep apnea and rhinitis. The examiner commented that the etiology of the veteran's severe obstructive sleep apnea was gain of weight from 1992, from 186 pounds to 262 pounds. The examiner remarked that in his opinion, sleep apnea was not connected to hypertension, but to the veteran's being overweight, and his sleep apnea could cause his hypertension to become worse. The examiner specifically noted that his medical opinion has been provided after reviewing the veteran's claims file. II. Analysis Through correspondence, the rating decision, the statement of the case, and the supplemental statement of the case, the veteran has been informed of the evidence necessary to substantiate his claim. Identified relevant medical records have been obtained, and a VA examinations have been provided. The Board finds that the notice and duty to assist provisions of the law have been satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected condition. 38 C.F.R. § 3.310. Secondary service connection may be found when an established service- connected condition aggravates a non-service-connected disability. When there is such aggravation of a non-service- connected disability, which is proximately due to or the result of a service-connected condition, the veteran will be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet.App. 439 (1995). The veteran served on active duty from 1966 to 1992. The service medical records show isolated complaints of sleep problems, but these were not medically attributed to sleep apnea. During service there were no findings or diagnosis of sleep apnea. Obviously virtually everyone has problems sleeping from time to time, and this can be due to any number of reasons. Difficulty sleeping does not by itself establish the existence of the disorder of sleep apnea. The veteran's sleep apnea was first diagnosed and treated in 1998, a number of years after service. The gap of years after service, without medical evidence of the condition, constitutes some evidence against a finding that the current condition is related to service. In statements in 1998, Dr. Toedt noted that the veteran had a history of some sleep problems in service, and the doctor opined that the sleep apnea began in service. However, it appears that Dr. Toedt did not have the veteran's entire claims file and based his medical opinion, at least in part, on the history provided by the veteran. Additionally, Dr. Toedt made no reference to the many years after the veteran's separation from service during which there is no medical evidence of sleep problems. Although an examiner can render a current diagnosis based on his examination of a claimant, without a thorough review of the record, his opinion regarding etiology can be no better than the facts alleged by the claimant. Swann v. Brown, 5 Vet.App. 229 (1993). Given such circumstances, the Board finds that Dr. Toedt's opinion has less probative value in this matter. A 2000 statement by a VA physician noted that the veteran's inadequately controlled hypertension might be partially related to his sleep apnea. This physician only stated that the hypertension may be affected by the sleep apnea, but he did not indicate that the hypertension was causative of the sleep apnea (i.e., he did not address the causation necessary for a finding of secondary service connection). Later in 2000, the veteran had two thorough VA compensation examinations by doctors who had the opportunity to review the claims file and all historical records. On one of these examinations, the doctor indicated that there was no etiological basis for hypertension causing sleep apnea and stated that the veteran's sleep apnea had been caused and/or aggravated by his increasing obesity. The examiner remarked that there was no reference to sleep apnea in service, and discussed the veteran's increasing weight since the time of service until the post-service diagnosis of sleep apnea and since then. The VA doctor concluded that the sleep apnea was most likely related to the veteran's morbid obesity. The other VA examiner similarly discussed the veteran's weight gain since service, and attributed the etiology of the obstructive sleep apnea to the post-service weight gain. The examiner also stated that the veteran's sleep apnea was not connected to his hypertension, but that the veteran's being overweight and his sleep apnea could cause his hypertension to become worse. Both of these VA examiners discussed historical and current findings when rendering their opinions. Under the circumstances, the Board finds that the opinions provided by these VA examiners are more probative than the opinion provided by Dr. Toedt. See Wensch v. Principi, 15 Vet.App. 362 (2001). The veteran has alleged that his sleep apnea had its onset during service or is that it is related to his service- connected hypertension. However, the veteran, as a layman, is not competent to give a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet.App. (1992). The weight of the competent medical evidence demonstrates that the veteran's sleep apnea began years after service and was not caused by any incident of service, and was not caused by or permanently worsened by his service-connected hypertension. The Board concludes that sleep apnea was not incurred in or aggravated by service, nor is it proximately due to or the result of a service-connected disability. Neither direct nor secondary service connection is warranted for sleep apnea. As the preponderance of the evidence is against the claim for service connection for sleep apnea, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for sleep apnea is denied. ____________________________________________ L. W. TOBIN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.